Unit 3

Women and the Law

Position and the role of women in Indian society & Crimes against Women
Introduction
Women have been an integral part of India’s culture and society since ancient
times. Women constitute around half of India's population and play a significant
role in the country's development and progress. In a country like India which
boast its glorious heritage, where women has not only enjoyed equal status but
has been described in the annals of history more than better half. However, the
status of women in India has been a topic of debate and marked by various
challenges, including gender discrimination, gender-based violence, and limited
access to education and economic opportunities. Despite the progress made in
recent years, there are still many challenges that women in India face today.
History of the role of women in Indian Society
The status and role of women in India have seen drastic changes over the past
millennia. In ancient times, Indian women’s role was confined to the house and
their families. In the Medieval period, the status of women was declined
considerably. And in modern times, women started fighting for their rights and
equality.
Women in pre-historic times
 During the period of Indus Valley civilization, the status of women was
equal in honour. The worship of the mother goddess demonstrates that
they were respected in the form of a mother.
 During the Rig Vedic period, women had superior status and they got more
liberty and equality. The position of wife was a privileged one in the
household and women had enhanced status in performing religious rites.
 In terms of education, both boys and girls were given equal opportunities.
After observing Upanayana Samskar, girls were permitted to spend their
lives in Gurukul. The education of girls was considered an important
qualification for marriage.
 During the age of Upanishads also women had a superior role in society and
widows had freedom of remarriage as well. The presence of women
teachers, many of whom possessed the highest spiritual knowledge was
also a feature of this period.
 The later years saw a decline in the role and status of women in public life.
Early marriage started hindering education and women slowly started
diminishing from away from political and educational spheres.
 The Maurya and later, the Gupta period saw the practice of Sati increasing,
and women’s lives were dictated by the men in their life. The upper-class
women were much more confined to their homes and were not allowed to
be out in public life.

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Women in the Medieval period
 This period saw many social evils like female infanticide, sati, child
marriages, the Purdah system, and widow’s condition were more miserable.
 The inflexibility of the caste system deprived of them the right to freedom
and social movement.
 She was forced to lead a life away from society as well as family.
 The inhuman practice of Sati had become forced and predominant.
Women in Modern India
 The modern period saw the start of the fight by women to gain their
position and stature back slowly. Many movements and organisations were
led by both men and women for the upliftment of women in society. Raja
Ram Mohan Roy (1772-1833) was one of the earliest social reformers to
focus and work on issues of women. He condemned sati pratha, and
polygamy, and spoke in favour of property rights for women. Likewise
Ishwar Chandra Vidyasagar is also a social reformer and is well known for
his efforts for widow remarriage. Jyotirao Phule and Savitribai
Phule worked immensely to educate girls and established girls’ schools for
the same.
What is the role of women in Indian society in general?
In traditional Indian society, the social role of women has been primarily as a wife
and mothers. In recent years, there has been a shift in the social role of women in
India.
 Family:
o Women are the key to sustainable development and quality of life in
the family.
o Various roles women assume in the family are those of wife, leader,
administrator, manager of family income, and most importantly, the
mother.
 Education:
o Women play a key role in educating children. The development of
future generations depends upon women.
o According to an Annual Status of Education Report (ASER) report, the
education levels of a mother have a strong correlation with the
holistic development of children.
 Health/ Public health:
o Women are responsible for 70-80% of all the healthcare provided in
India. Female healthcare providers can be important in educating
society to recognize their health and nutrition needs.

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 o Women professionals and the empowerment of women at all levels
are required for the improvement of the health and nutrition
status in India.
 Food Security:
o Women are essential contributors to all four aspects of food security,
including availability, access, utilization, and stability.
o They serve as food producers, farmers, and entrepreneurs, as well as
"gatekeepers" who make critical decisions and invest time and
income to ensure the food and nutrition security of their households
and communities.
 Politics :
The political role of women in India has been complex and evolving.
Historically, women in India have been underrepresented in politics, with a
low percentage of women in positions of power.
 Women's political participation is a fundamental prerequisite for gender
equality and genuine democracy.
 There is also strong evidence that as more women are elected to office,
there is a corollary increase in policy-making that emphasizes quality of life
and reflects the priorities of families, women, and ethnic and racial
minorities.
 The three main parameters to assess the state of women’s participation in
politics in India are: Women voter turnout, women's candidature in
elections, and women representation in political offices.
 The female voter turnout in the Lok Sabha elections has increased
from 46.6% in 1962 to 66.9% in 2019, which indicates their increasing
role in politics. Also, the number of female representatives in the Lok
sabha increased from 5% in 1951 to 14% in 2019.
 Representation of women leaders at the grassroots level in India is
nearly 50%, especially since the 73rd and 74th amendments in 1992, which
allotted one-third of all seats to women.
 Economy :
The economic role of women in India has traditionally been limited, with
many women facing cultural, social, and economic barriers that prevent
them from fully participating in the workforce. However, in recent years,
there has been a growing recognition of the important role that women
play in the Indian economy.
o The present contribution of women to the national GDP is around 18%.
o In India, women comprise 48% of the agricultural workforce and own only
13% of the land. Women in India constitute around 20% of
the manufacturing workforce and around 30% of the total workforce in
the services sector.

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 o At present, there are 432 million women of working age in India, out of
which 343 million are employed in the unorganized sector.
o India has the 3rd largest ecosystem in terms of Startups in the world,
and 10% of them have been led by women founders. Also, research shows
that ventures started by women are more sustainable in nature.
o In 2022, a survey among 250 Indian companies revealed that the share of
women in the Chief Executive Officer or Managing Director
roles has increased by 55% which reflected significant growth in their role
in driving the economy.

Legal Rights for women in India

Women in India have been granted various legal rights over the years to promote
gender equality and protect their interests. Here are some of the most important
legal rights that women in India have:
1. Right to equality
Article 14 of the Indian Constitution guarantees the right to equality to all
citizens, regardless of their gender.
2. Right to education
The Right of Children to Free and Compulsory Education Act, 2009, makes
it mandatory for all children, including girls, between the ages of 6 and 14 to
receive education.
3. Right to work
The Equal Remuneration Act, 1976, ensures that men and women receive
equal pay for the same work.
4. Right against sexual harassment
The Sexual Harassment of Women at Workplace (Prevention, Prohibition,
and Redressal) Act, 2013, provides a framework for addressing complaints
of sexual harassment at the workplace.
5. Right to property
The Hindu Succession Act, 1956, was amended in 2005 to give equal
inheritance rights to daughters in Hindu families.
6. Right to marriage and divorce
The Hindu Marriage Act, 1955, gives women the right to seek divorce on
various grounds, including cruelty and adultery.
7. Right to health
The Maternity Benefit Act, 1961, provides women with paid maternity leave
and other benefits during pregnancy and childbirth.
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 8. Right against domestic violence
The Protection of Women from Domestic Violence Act, 2005, provides
legal protection to women from physical, emotional, and verbal abuse by
their spouses or relatives.

Conclusion

In conclusion, the status of women in India has improved significantly in recent

years, but there is still a long way to go. It is essential to recognize the
achievements made so far and continue to work towards a more equitable and just
society for women. By addressing the challenges that women in India face and
promoting gender equality, we can ensure that women can fully participate in all
aspects of life and contribute to the development of the country.

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 Crimes against Women
Introduction
Women are the half of world’s population. All over the world sexual purity of
women is attached to the ‘honour’ of the family and thus to attack the honour of
certain family the women of that family is sexually assaulted. ‘Dignity’ of the
women becomes fragile as women have been victims of humiliation, torture and
exploitation.
In India, gender based violence is very common, perhaps it is deeply rooted in the
society. Almost every woman is victim of violence. There is not even a single day
when a crime against the woman, whether in the form of eve-teasing or
molestation or rape or immoral trafficking or sexual harassment at the work place
or domestic abuse, has not taken place, thereby putting a woman’s right to live
with dignity in anger at one point of time or the other.
Women all over the universe are strong enough but gets shattered when their self
esteem is hurt. The dignity for women is much precious then life and this is
universal phenomenon. Right to life includes right to human dignity. The Supreme
Court is the custodian of Fundamental rights and consequently the dignity of
women. In Maneka Gandhi V. ‘Union of India’, it was ruled that right to live with
human dignity.
Legal Provisions
So as to protect the dignity of the women various safeguards have been enshrined
in the constitution of India in the form of fundamental rights and there are many
legal provisions which punish the culprits committing offences against women.
The BNS though, provides provisions for women as a victim of many crimes such
as murder, robbery, theft, etc. but there are certain crimes which are diametrically
characterised against the women known as 'Offences Against Women'. With the
need of the hour, many new socio-economic offences have been enacted
accompanied by various amendments in the existing laws with an objective to
combat these crimes effectually.
Classification of Laws related to Crime against Women
The laws associated with the crime against women may be classified into
following two categories: Crimes against Women under the Special and Local
Laws (SLL)
The crimes against women provided under the Special and Local Laws aim to
obliterate the immoral and sinful practices and exploitation of women in the
society. These laws are periodically reviewed and amended in order to bring off
promptness with arising needs.
Following are some acts comprising of special provisions to protect women and
their interests-
* The Immoral Traffic (Prevention) Act, 1956
* The Dowry (Prohibition) Act, 1961

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* The Child Marriage Restraint Act, 1929
* The Indecent Representation of Women (Prohibition) Act, 1986
* The Commission of Sati (Prevention) Act, 1987
* Protection of Women from Domestic Violence Act, 2005
* The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal)
Act, 2013.
Crimes against women (Glimpses of Bharatiya Naya Sanhita, 2024)
1. Kidnapping (Sec 137)
2. Eve Teasing (Sec 79)
3. Rape & Gangrape (Sec 63& 70)
4. Sexual Harassment (Sec75)
5. Domestic Violence (Sec 85)
6. Honor Killing
7. Cyber Crimes (Bullying, Abuse, Violence, Pornography)
8. Dowry deaths
9. Acid Attacks (Sec 124)
10.Stalking (Sec 78)
11.Assault to outrage modesty (Sec 74)
12.Women trafficking (Sec 143,144,98,99)
Kidnapping
The term kidnapping refers to either kidnapping from India or kidnapping from
lawful guardianship. Sec 360 of the IPC states that whoever conveys any person
beyond India without his consent is said to kidnap that person from India and
whoever takes a away a minor (16yrs in case of male and 18yrs in case of female)
without his consent or the guardian’s consent is said to kidnap that person from
lawful guardianship (Sec 361). The punishment for this purpose is upto 7 yrs and
fine. Sec 366 of IPC defines kidnapping, abducting or inducing woman to compel
her marriage and forceful sexual relations for which the offender can be punished
with imprisonment upto 10 yrs and fine.
Eve Teasing
Eve Teasing is a euphemism used for public sexual harassment or molestation of
women by men. It is a problem in the current youth. It is a form of sexual
aggression that ranges in severity from sexual remarks, brushing and catcalls to
groping. Sec 509 of the IPC states that whoever intending to insult the modesty of
any women, utters any word, makes any sound or gesture or exhibits any object
which intrudes upon the privacy of such woman shall be punished with
imprisonment upto 3 yrs and fine.
Rape
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Rape is a much broader term to be defined and its scope is of wider perspective. It
is the most common crime against women and the Indian society and system has
failed to end this heinous crime. The world is seeing India as a nation of rapists.
The numbers have increased tremendously. The law system has failed purely. The
offence can be categorized in various aspects as a rape of a minor girl, rape of a
woman (Sec 376), rape with murder (Sec 376A), rape in families, rape by public
servants (Sec 376C) , gang-rape (Sec 376 D), marital rapes (Sec 376B). The
punishments for these offences range from imprisonment upto 7yrs to 20 yrs or
Life imprisonment and also fine.
Sexual Harassment
Sexual harassment can be defined as unwelcome sexual advances, requests for
sexual favors and other verbal or physical harassment of sexual nature. It includes
a range of actions from mild transgressions to sexual abuse or sexual assault,
showing pornography to women against her will etc. Acc to Sec 354A of IPC if
any person commits an act of sexual harassment, he shall be rigorously imprisoned
upto 3yrs and fine.
Domestic Violence
Domestic Violence is yet another term which is common in our country as women
were and are considered to be the inferior strata of human society. The psychology
was that the man earned and worked outside so he had the right to do anything
with his wife. But with time, the trend changed and now women equally work.
These acts of violence include beating, rape, forced sex etc. Sec 498A of Domestic
Violence Act, 2005 defines 1yr punishment and fine.
Honor Killing
A spate of murders and dishonourable crimes in the name of ‘honour’ whether of a
family or caste or community are continuing to be reported. Though most of these
killings and crimes are being reported from various states of India. A crime in the
name of ‘honour’ is one of a range of violent or abusive acts including emotional,
physical, and sexual
abuse and other coercive acts. The panchayats or associations, through various
kinds of coercive and punitive actions, want to create terror and stop marriages and
associations on the basis of choice from taking place. These actions are also
violative of certain fundamental rights in the Constitution of India, including the
right to life, and liberty which includes the right to bodily integrity, and the right to
choose whom to associate with.
Cyber Crimes
In the world of technology, India too had advanced itself in technology and the
women are an equal part of it. But the diseased minds have not left any chance to
offend women in the cyber world too. There are several cyber crimes such as
bullying, abusing, pornography etc which are happening each day against women.
These crimes have several punishments under the Information Technology Act,
2000 which ranges from imprisonment upto 3yr to L.I. and fine.
Dowry Deaths

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The evil practice of taking dowry in marriage is still common in the rural areas of
India which if opposed results to deaths of women gradually. The number of such
deaths has increased in the recent years.
Acid Attacks
However sale of acids without proper information have been banned by the
government of India, Acid attacks are still in trend to threaten women and hurt
them. Sec 326A and 326B of IPC states that whoever voluntarily throws acid for
grievous hurt or an assault shall be punished with imprisonment upto 7yrs to L.I.
and fine.
Stalking
Stalking is a new crime in trend against women. Stalking means breaching the
privacy of women by following or regular contacts or monitoring on internet or
any other electronic communication. Whoever does so shall be punished with
imprisonment upto 3yrs to 5yrs and fine.
Assault to outrage modesty
Whoever assaults or uses criminal force intending to outrage her modesty (1yr-5yrs
imprisonment) or disrobing her or compelling her to be naked (3yrs-7yrs
imprisonment) are liable under Sec 354 and Sec 354B respectively.
Case: State of Punjab v. Major Singh
Facts: In this case, the accused had caused injuries to the vagina of a seven and a
half months old child by fingering.
Judgment: It was held that the accused was liable for outraging the modesty of the
child under Section 354, IPC. The court further added that the essence of a
woman's modesty is her sex. Young-old, intelligent or imbecile, awake or sleeping;
women possesses a modesty capable of being outraged.
Women trafficking
The concept of women trafficking started in the late 20th century in India and is
still in existence. Sec 370 describes various modes of trafficking which includes
trafficking of minor girls, trafficking for the purpose of exploitation etc. Sec 372
and 373 states the buying and selling minor for the purposes of prostitution. The
imprisonment term varies in each offence and ranges from 3yrs to L.I. and also
fine.
Note–Sections 326A, 326B, 354, 354A, 354B, 354C, 354D, 370, 370A, 375, 376,
376A, 376B, 376C, 376D and 509 have been amended and inserted by The
Criminal Law(Amendment) Act, 2013.
Conclusion
Notwithstanding the number of laws to protect and safeguard the rights and interest
of the women, the rate of crime against women and victimization is mushrooming
day by day. It is well said that it takes two to tango. It implies that only laws are
not responsible to regulate and control the augmentation of the crimes against
women in our society. The suppression of evil eyes on women and inculcation of
social ethics, morals and values, respect and honor in every human being towards
women is the need of the hour and is a supplement factor that can equally

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contribute in reducing the number of crimes against women. However, there is an
exigency of more strict and stringent laws so that any person intending to commit
such crimes couldn't screw up the courage to act in furtherance of his intention

Unit 3
Women and the Law
GENDER INJUSTICE AND ITS VARIOUS FORM
India has had a patriarchal society for ages, and it is high time now that women
stand up for themselves. Inequality between males and females is seen on a wide
spectrum, even in today’s modern era. We find these discriminations not only in
workplaces but also in our own homes. Ancient traditions and customs have been
so deeply embedded in our Indian society for such a long time that they curb the
free will, independence, and personal views of women. Women are denied
opportunities; they are not allowed to have opinions of their own and are limited to
their homes, thereby being completely dependent on men.
What is Gender Injustice?
Gender injustice is the unequal treatment of individuals or groups based on their
gender identity or expression. It can manifest in many different ways, including
discrimination, violence, and exploitation.
TRADITIONAL MINDSET OF INDIAN SOCIETY
Since ages past, women have been expected to get married, serve their husbands,
and take care of the family. The traditional outlook made it seem that men used to
go out, work, and earn money while women were supposed to stay home, cook,
and take care of the children. This has been continuing even today, against the will
of the women in most cases. They are expected to leave their jobs and sit at home,
serving her husband and in-laws. People are expected to act according to their
gender roles. Men hold the position of power and authority and have the last say in
most things, including decision-making. Boys were considered a blessing as the
family could have a male heir, and having a girl child would be looked down upon
and considered a burden, and the mother of the girl child was blamed for the entire
thing. The male child was given more opportunities and freedom, which
constituted a better life for him, while the female child was forced to get married at
a young age, thereby leading a miserable life where she was denied opportunities.
TYPES OF GENDER INEQUALITIES
There are many kinds of gender inequality or gender disparity which are as
follows: A. MORTALITY INEQUALITY - This is the inequality between men
and women in terms of the mortality rate. India has a higher female infant
mortality rate, leading men to be in a greater number in the overall population.
Women in Indian society receive little or no healthcare and nutrition in comparison
to men.
B. NATALITY INEQUALITIES - In this type of inequality a preference is given
for boys over girls that many male-dominated societies have, gender inequality can
manifest itself in the form of the parents wanting the newborn to be a boy rather
than a girl. In the past, this preference was just a wish, but modern technology now

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allows parents to determine the sex of a fetus and choose to have sex-selective
abortions. This practice is common in East Asian countries like China and South
Korea, as well as Singapore and Taiwan. It is also becoming significant in India
and South Asia.
C. EMPLOYMENT INEQUALITY - Women often face more difficulties than
men in getting jobs and promotions. For example, in countries like Japan and
India, while there may be equality in demographics, basic facilities, and higher
education, women still struggle more than men to reach higher levels of
employment and occupation. Men often receive priority when seeking jobs.
D. OWNERSHIP INEQUALITY - Property ownership can be very unequal, with
men typically owning more property than women. This includes basic assets like
homes and land. Without property, women have less influence and face more
challenges in participating in commercial and economic activities. This type of
inequality is common worldwide, including in India, where traditional property
rights favor men.
E. HOUSEHOLD INEQUALITY - Within families, gender roles can lead to
inequalities. Even if there are no obvious biases against women in survival,
education, or job promotions, women often bear a greater share of housework and
childcare. Society often assumes that men will work outside the home while
women can only work outside if they can also manage household duties. This
unequal "division of labour" extends to employment and recognition in the outside
world, affecting women's opportunities and societal perceptions of their work.
F. SPECIAL OPPORTUNITY INEQUALITY - Despite having access to basic
facilities like schooling, young women often have fewer opportunities for higher
education compared to young men. Gender bias in higher education and
professional training exists even in wealthy countries and is also present in India.
This inequality is sometimes justified by the out-dated belief that men and women
have different roles or "provinces" in society.
These different types of gender inequality highlight how deeply rooted and varied
the issue can be, affecting many aspects of life from birth to professional
advancement.
CAUSES OF GENDER INEQUALITY IN INDIA
The below given are some of the major causes of gender inequality in India:
1. Poverty Poverty is one of the reasons for high gender inequality in India. Poor
households didn’t have enough to raise a child properly, and if it comes to choice,
the male child is preferred over the female child. Hence, female children are denied
proper healthcare, education, and care.
2. Uneven Access to Education Globally, women still have less access to
education than men. Onefourth of young women between 15 and 24 have yet to
finish their primary education. Around two-thirds of women are illiterate of all
illiterate people worldwide. In India, parents prefer their male child to go to school
and involve their girl child in household chores.
3. Poor Medical Care Women receive less medical care than men. That’s why
postpartum many women die. There is also less research into diseases affecting
women than men, like autoimmune disorders and chronic pain conditions.
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4. Lack of bodily autonomy Many women don’t have rights over their bodies when
they become parents. According to the World Health Organization (WHO), over
200 million women who don’t want to get pregnant are not using contraception due
to opposition from their male counterparts, limited access, cultural/ religious
beliefs, etc. Globally, around 40% of pregnancies are unwanted, while 50% end in
abortion, and 30% result in the birth of a child.
5. Patriarchal Setup in our Indian Society Since time immemorial, India has been
an extremely patriarchal society. The patriarchal setup in Indian society contributed
to the fundamental inequality between men and women. As women were
considered a part of the household belonging to their father or husband, they were
unable to get a say in any matters concerning their own development or that of the
community at large.
6. Lack of Awareness Among Women One of the major causes of gender
inequality is the lack of awareness among women about their rights and their
ability to achieve equality. This lack of awareness is often due to the prevailing
cultural and social norms, which dictate that women should be subservient to men.
It is important to break down these barriers and help women become more aware
of their rights so that they can demand equality.

7. Social Customs, Beliefs and Practices The views of society, customs and
cultural practices play a big role in keeping women at lower places in the society –
refusing them opportunities, which are generally provided to men, who are
considered the dominant ones in India.
INDIAN CONSTITUTION AND GENDER EQUALITY
Gender equality means providing equal opportunities to both men and women in
every sector, be it the workplace, wages earned, or the opportunities provided.
There should be no discrimination between men and women. Article 14, Article 15,
Article 16, and Article 39 of the Indian Constitution are a few important articles
that revolve around the concept of equality.
1. Article 14 - Article 14 talks about the Right to Equality. It is a fundamental right
and makes sure that every Indian citizen is given equal treatment before the law
and that equality is not denied on the basis of race, caste, class, religion, gender,
etc. As women are forced to marry at an early age, it becomes difficult for them to
pursue higher studies and get a job, which makes them dependent on men for every
little thing.
2. Article 15 - The state shall not discriminate between people on the basis of caste,
class, religion, gender, etc. The wages offered at workplaces and the treatment
given to males and females should not be unequal.
3. Article 16 - Equal opportunities should be provided to all the citizens of India in
matters relating to appointment of public sector jobs and there should be no
discrimination for such employment on the basis of religion, gender, caste, etc.
4. Article 39 - Article 39 talks about equal pay for both men and women. There
should be no discrimination between the wages provided to men and women for
the same work that they are undertaking.

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INDIAN LAWS RELATED TO GENDER EQUALTIY
A. Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013
This Act is provided to safeguard women from sexual harassment at work. This
adversely affects the fundamental rights of women and caters to their modesty. It is
the responsibility of the government to frame the necessary rules and regulations,
thereby providing a safe environment for them. ‘
B. The Dowry Prohibition Act, 1961
The age-old custom of giving and receiving dowries needs to be eradicated. The
wife and her family are expected to meet the demands of her husband and in-laws
in the form of expensive gifts without even bothering about the condition of her
family. On not meeting the required demands, the wife is ill treated, abused, and
tortured by her husband and in-laws, in some cases eventually leading to dowry
deaths. The Dowry Prohibition Act was enacted to eradicate the custom of giving
and receiving dowries and too make it punishable.
C. The Protection of Women From Domestic Violence Act, 2005
Domestic violence is prevalent in many households even today. The wife is ill
treated by her husband, subjected to domestic violence, abused by her inlaws both
mentally and physically, and made to suffer. These matters are not taken into
consideration, thinking that it is a family issue and should be resolved within the
family, thereby leaving the people who commit such crimes unpunished. The
objective of introducing this Act was to make people understand that domestic
violence is unlawful and punishable by law. Domestic violence should not be
normalised.
D. The Commission of Sati (Prevention) Act, 1987
Sati was considered a custom wherein if the husband dies, the wife is also made to
die by burning her with him as a form of social rite. In ancient times, young girls
were made to marry middle aged or old men. It was pretty obvious that those men
would die early, and on his death, the women were forced to perform sati, leading
to a miserable and painful death. This Act was enacted to end this custom and
make forcing someone to commit sati or attempting to do it on their own free will
punishable under law and punishable with a fine as well as lifelong imprisonment.
Judicial pronouncements
A. Shayara Bano vs. Union of India and Ors. (2017)
This case talks about the triple talaq concept, wherein Rizwan Ahmed divorced his
wife, Shayara Bano, in 2016 after 15 years of marriage. The Supreme Court ruled
in favour of Shayara Bano, thereby considering triple talaq unconstitutional. Triple
talaq violates Article 14 as the husband can break the marriage ties instantly
without the consideration of his wife or` the effort to save the marriage.
B. Vishaka and Ors. vs. State of Rajasthan and Ors. (1997)
This case talks about a woman named Bhanwari Devi, who was a social activist
in Rajasthan. She was not in favour of child marriage and made efforts to stop
it. She tried stopping the marriage of an infant who was not even a year old; this
led to her being sexually harassed and raped in a fit of rage and a feeling of

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 revenge, which led to the formation of the Vishaka Guidelines. The Supreme
Court stated that these guidelines were to be implemented until legislation is
passed to deal with the issue.
C. Mrs. Mary Roy, Etc. vs. State of Kerala and Ors. (1986) In this case, Mary
Roy, a widow, was denied the family inheritance of her parents. Her brothers
took all the property by crook, but she was determined to have it because it was
her right. She felt her right to equality had been infringed and thus went to court
to fight the case against her brothers. This case shows us the long standing
patriarchal mindset and dominance in our Indian society.
POSSIBLE SOLUTIONS TO OVERCOME THE PROBLEM OF GENDER
INEQUALITY
Men and women should be treated equally, be it at work or in our own homes. But
we see differences in the wages given to men and women at workplaces for the
same amount of work they do; this is also seen with movie actors and actresses.
Hence, change is needed. A few solutions to overcome the problem of gender
inequality are:
 Creating awareness via social media - In today’s technology driven world, most
people use social media. It is the best platform to bring an issue into the limelight
and spread awareness about the different problems experienced by women. It is the
fastest way to address an issue with a large number of people, eventually reaching
higher authorities. Through this medium, we can make women aware of their rights
and help them overcome different problems.
 Upbringing of children in the right way - The inequalities that we see prevalent
since ancient times are due to old age traditions followed by people. Girl children
were considered a burden, and she was made to realise that her work was only to
serve her husband and take care of her children and family, thus this mindset
getting passed down from one generation to the next, whereas the sons would be
treated in a very good manner, providing him with opportunities and teaching him
that the work of cooking and cleaning is just for women. If people start treating
their children in the right way, considering both the girl and boy child equal, by
providing both of them with opportunities and making them realise that work
needs to be divided equally, our country will transform beautifully.
CONCLUSION
Whenever guests or relatives visit our homes, we always find the men of the family
sitting around the table, eating, talking and enjoying themselves, whereas the
women in the family are usually in the kitchen, cooking food, serving the guests,
picking up the food that is dropped on the floor, etc. Why can’t men and women
equally share the responsibility? Even if both the husband and wife are earning, the
wife is expected to prepare breakfast and keep things ready while the husband has
everything ready for him. All of this happens in most places, but as our country is
developing, we see changes happening, men helping women and sharing
responsibilities. But in some places, women still face this inequality. Gender
equality is a topic that we have spoken about for a long time. It’s high time now
that these theoretical aspects get transformed into practical actions.

14
 Unit 3
Women’s Commission
Introduction
Women's commissions in India were established with great promise and high
expectations, envisioned as institutions dedicated to safeguarding the rights and
interests of women at both the national and state levels. Yet, as time has passed,
the need for a critical review of their functioning and responses to pressing
women's issues has become evident. Recent incidents of molestation and rape in
Manipur have brought these commissions into sharp focus, revealing a
disturbing saga of cruel disregard for human dignity and rights.
What are the Women’s Commissions?
 National Commission for Women (NCW):
o The NCW is the statutory body of the Government of
India, generally concerned with advising the government on all
policy matters affecting women.
o It was established in January 1992 under the provisions of the
Indian Constitution, as defined in the 1990 National Commission for
Women Act.
o The objective of the NCW is to represent the rights of women in
India and to provide a voice for their issues and concerns.
o The subjects of their campaigns have included dowry, politics,
religion, equal representation for women in jobs, and the
exploitation of women for labour.
o The NCW also receives and investigates complaints from women
who are victims of violence, discrimination, harassment, or
deprivation of their rights.
 State Commissions for Women
o Apart from the NCW, there are also State Commissions for Women
in various states and union territories of India.
o These commissions are also established under the respective state
acts or orders and have similar functions and powers as the NCW.
o Some of the states and union territories that have their own
commissions for women are Andhra Pradesh, Assam, Bihar,
Chhattisgarh, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh,
Jammu and Kashmir, Jharkhand, Karnataka, Kerala, Madhya Pradesh,
Maharashtra, Manipur, Meghalaya, Mizoram, Nagaland, Odisha,

15
 Punjab, Rajasthan, Sikkim, Tamil Nadu, Telangana, Tripura, Uttar
Pradesh, Uttarakhand and West Bengal.
NCW Composition
As per Section 3 of the National Commission for Women Act 1990, the
Commission shall consist of a Chairperson, 5Members, and a Member-
Secretary who are nominated by the Central Government.

Composition Eligibility

Chairperson Committed to the cause of women

Amongst persons of ability, integrity, and standing who have had

experience in law or legislation, trade unionism, women's
voluntary organizations, administration, health, education, etc.
5 Members
Note: At least one Member shall be from amongst persons
belonging to the Scheduled Castes and Scheduled
Tribes, respectively.

An expert in the field of management, organizational structure, or

Member- sociological movement (or) an officer who is a member of a civil
Secretary service of the Union or of an all-India service or holds a civil post
under the Union with appropriate experience.

 Term: The Chairperson and every Member shall hold office for a period
of three years.
 Removal: The Central Government may by order remove the Chairperson
or any other Member from office if the Chairperson or any other member:
o Is adjudged insolvent.
o Engages during his term of office in any paid employment outside the
duties of his office.
o Refuses to act or becomes incapable of acting.
o Is of unsound mind and stands so declared by a competent court.
o Has so abused his office as to render his continuance in office
detrimental to the public interest.
o Is convicted and sentenced to imprisonment for an offense which in
the opinion of the Central Government, involves moral turpitude.
Note: No person shall be removed until that person has been given an opportunity
of being heard in the matter.
What are the Objectives and Functions of the Women’s Commissions?
 Objectives of Women's Commissions:
o Representation of Women's Rights:

16
  The primary objective of the National Commission for
Women (NCW), is to represent and advocate for the rights
of women in India.
 They act as a voice for women's issues and
concerns, addressing various challenges faced by women in
society.
o Policy Advice:
 Women's commissions are tasked with advising the
government on policy matters that affect women.
 They provide valuable recommendations and suggestions to
shape policies and legislation that promote gender
equality and safeguard women's rights.
o Safeguarding Constitutional Provisions:
 Women's commissions are responsible for investigating and
examining all matters related to the safeguards provided for
women under the Indian Constitution and other laws.
 They ensure that constitutional rights and protections for
women are upheld and implemented effectively.
o Handling Complaints:
 These commissions are mandated to address
complaints related to women's rights violations.
 They play a crucial role in investigating and resolving
issues of discrimination, harassment, violence, and other
injustices faced by women.
o Suo Motu Actions:
 Apart from responding to complaints, women's
commissions can also take suo motu notice of matters related
to the deprivation of women's rights and non-implementation of
laws aimed at protecting women.
 This allows them to proactively address emerging issues
affecting women.
o Empowering Women:
 Women's commissions work towards empowering women by
promoting their economic development, education, and
health.
 They aim to enhance women's employment potential and
create opportunities for their advancement in various sectors.
 Functions of Women's Commissions:
o Research and Study:
 Women's commissions conduct research and studies on issues
relevant to women's rights and gender equality.
17
  They gather data and information to support evidence-based
policy recommendations.
o Advocacy and Awareness:
 These commissions engage in advocacy efforts to raise
awareness about women's rights, gender equality, and related
issues.
 They organize campaigns and events to promote social
awareness and change attitudes towards women.
o Legal Aid and Support:
 Women's commissions often provide legal aid and support to
women who have faced discrimination, violence, or other
rights violations.
 They assist women in accessing justice and navigating legal
processes.
o Training and Capacity Building:
 Commissions offer training programs and capacity-building
initiatives for various stakeholders, including law enforcement
agencies, to sensitize them towards women's issues and
improve their response to gender-based challenges.
o Policy Recommendations:
 Based on their research and findings, women's
commissions make policy recommendations to the
government to address systemic gender disparities and
create a more gender-inclusive society.
o Collaboration and Partnerships:
 These commissions collaborate with various stakeholders,
including NGOs, civil society organizations, and other
government bodies, to create a collective effort in promoting
women's rights and gender equality.
What are various initiatives undertaken by NCW to carry out its mandate?
In keeping with its mandate, the Commission initiated various steps to improve the
status of women and worked for their economic empowerment.
 The Commission completed its visits to all the States/UTs and
prepared ‘Gender Profiles’ to assess the status of women and their
empowerment.
 It received a large number of complaints and acted suo-moto in several
cases to provide speedy justice.
 It took up the issue of child marriage and sponsored legal awareness.
programmes, Parivarik Mahila Lok Adalats, and reviewed laws such
as Dowry Prohibition Act 1961, PNDT Act 1994, Indian Penal Code
1860, and the National Commission for Women Act 1990 to make them
more stringent and effective.
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  The Commission has proposed amendments to the Hindu Marriage Act
1955, Medical Termination of Pregnancy Act 1971, and the Indian Penal
Code 1960, etc.
 It organized workshops, constituted expert committees on economic
empowerment of women, conducted seminars for gender awareness, and
took up publicity campaigns against female foeticide, violence against
women.
 NCW has recently established a "J&K and Ladakh Cell" to address
women's complaints and promote their development in all areas within these
newly-formed UTs, due to the unique challenges faced by women there.
National Commission for Women Challenges
The National Commission for Women (NCW) faces a number of challenges in its
efforts to protect and promote the rights of women in India. Some of them include:
 Limited legal power: The NCW's authority is mainly recommendatory in
nature, and it does not have the power to enforce its recommendations or
take legal action against violators.
 Lack of resources: The NCW often faces a shortage of staff and resources,
which hinders its ability to carry out its mandate effectively.
o A report by the Parliamentary Standing Committee on Home
Affairs noted that the NCW has a shortage of staff and needs
additional resources to effectively address women's issues.
 Inadequate representation: The NCW has been criticized for inadequate
representation of marginalized women, including those from lower castes,
tribes, and religious minorities.
o A study by the Centre for Social Research found that the NCW lacks
representation from these groups and needs to be more inclusive in its
approach.
 Limited outreach: The NCW's outreach efforts are often limited, and it may
not be able to effectively reach out to women in remote areas or those who
are illiterate.
What measures could be recommended for the effective functioning of the
commission?
Some recommendations for the effective functioning of the National Commission
for Women (NCW):
 Increasing awareness: The NCW could deploy resources at the district
level to bring attention to local atrocities and raise awareness about the
NCW.
 Strengthening the legal powers: To enhance the NCW's ability to
effectively address issues related to the rights of women and to strengthen
the laws for the safety of women in the workplace, it would be beneficial to
give the NCW more legal powers.

19
 o The 257th report of the Law Commission of India recommended that
the NCW be given greater powers to take action against violators of
women's rights.
 Increasing the funding: To ensure the NCW has the resources it needs to
effectively carry out its mandate, it would be helpful for the central
government to devolve more funds to the NCW and to give it an
independent budget.
 Outreach to remote areas: The NCW needs to have effective outreach
mechanisms to reach women in remote areas or those who are illiterate.
o The Human Rights Watch has recommended that the NCW work to
improve its outreach efforts and ensure it reaches women needing
assistance.
 Education and empowerment: The NCW should educate women about
their rights and empower them to make informed decisions regarding their
lives. It should establish self-development centers and encourage women's
participation in small-scale work to promote empowerment and
independence.

20
 Unit 3 – Women and the Law
Empowerment of Women
Introduction
In India, a country characterized by its rich cultural heritage and diverse
population, the status and rights of women have been of paramount importance in
shaping its societal fabric. Constitutionally enshrined provisions, supplemented by
legislative measures and progressive policies, have sought to address historical
inequalities and empower women across various spheres of life. The Indian
Constitution, adopted in 1950, lays down fundamental principles of equality,
justice, and liberty for all citizens, irrespective of gender. Moreover, a range of
laws and policies have been enacted to safeguard women’s rights, promote gender
equality, and combat discrimination and violence against them. From landmark
legal reforms to targeted welfare schemes, India has embarked on a journey
towards ensuring women’s empowerment and inclusivity in all facets of socio-
political and economic life.
About Women Empowerment
Women Empowerment, broadly, refers to the process by which women gain
power and control over their own lives and acquire the ability to make strategic
choices. It involves promoting a sense of self-worth among women, along with
their ability to determine their own choices, and their right to influence social
change for themselves and others.
Constitutional Provisions for Women in India
 The Constitution of India not only ensures equality for women but also
allows the government to take special actions to help women overcome
the social, economic, political, and educational challenges they may face.
Fundamental Rights
Fundamental Rights guarantee that everyone is treated equally under the law. They
prevent discrimination based on factors like religion, race, caste, or place of birth.
They also ensure that all citizens have an equal opportunity for employment.
1. Article 14– Men and women to have equal rights and opportunities in the
political, economic and social spheres.
2. Article 15(1) — Prohibits discrimination against any citizen on the grounds
of religion, race, caste, sex etc.

21
 3. Article 15(3)– Special provisions allow the government to take actions that
benefit women and promote gender equality.
4. Article 16– Equal opportunities for all citizens in public appointments
5. Article 23– Prohibits human trafficking and forced labor.
Directive Principles of State Policy
1. Article 39(a)– State shall direct its policy towards securing all citizens men
and women, equally, the right to means of livelihood.
2. Article 39(d)– Equal pay for equal work for both men and women.
3. Article 42– The State to make provision for ensuring just and humane
conditions of work and maternity relief.
Fundamental Duties
Article 51 (A)(e)– To renounce the practices derogatory to the dignity of women.
Other Provisions
1. Article 300 (A)– Right of property to women.
2. 73rd & 74th Amendment Act 1992– Reservation of 1/3rd of seats in local
bodies of panchayats and municipalities for women. (The day on which
73rd amendment became operational i.e April 24th is also declared
as Women’s Empowerment Day.
Legislations for Safeguarding Women in India
Over time, the Indian Parliament has passed several legislations to empower
women and provide them with a legal foundation in their pursuit of
equality and justice. Some of these legislations include:
1. Sati (Prevention) Act 1987– The practice of Sati, which involves a
widow self-immolating on her husband’s funeral pyre, was initially banned
in 1829. In 1887, revised legislation was enacted to make it illegal. This law
aimed to more effectively prevent the occurrence of Sati, stop
the glorification of this practice, and address related matters.
2. Amendment to Criminal Act 1983 –This legislation made domestic
violence an offense and also established rape as a punishable crime.
3. Special Marriage Act 1954 – It has been amended to set the minimum age
of marriage at 21 years for males and 18 years for females.
4. Hindu Succession Act 1956 –This Act ensures that daughters receive an
equal share of their father’s property, and widows have the right to inherit
their husband’s property. An amendment in this Act in 2005 allowed
daughters to have an equal share in ancestral properties as well.
5. Immoral Traffic Prevention Act (ITPA), 1986 –The Suppression of
Immoral Trafficking in Women and Girls Act (SITA) of 1956 was changed
in 1986 and renamed the ITPA. It was created to stop the trafficking of
women and girls for prostitution. The amendment broadened its scope to
include both sexes and increased the penalties for crimes involving minors.

22
6. Dowry Prohibition Act 1961 – This law forbids the exchange of
dowry before or after a marriage. Courts can take action based on their own
knowledge or complaints from recognized welfare organizations in cases of
–dowry-related murders. An amendment to the Indian Evidence Act shifts
the burden of proof to the husband and his family if the bride dies within 7
years of marriage.
7. Maternity benefit Act 1961 –This law regulates the employment of women
for a certain period before and after childbirth. It also provides maternity
benefits, including paid leave for 6 months.
8. Medical Termination of Pregnancy Act 1971 – This law allows abortion in
certain situations. Abortion is allowed if the fetus has physical or mental
abnormalities, in cases of rape, or for unwanted pregnancies within the first
12 weeks of pregnancy. After the 12th week and up to the 20th week,
abortion is permitted if the pregnancy would harm the mother or if the child
would be severely deformed.
9. Indecent Representation of Women (Prohibition) Act, 1986 –This law
makes it illegal to show women in a disrespectful or inappropriate way
in advertisements, publications, writings, paintings, figures, or any other
form.
10.Domestic Violence Act 2005-This law aims to identify and address all types
of domestic violence against women and make it a crime.
11.Criminal Law (Amendment) Act 2013 –In response to the Delhi 2012
gang rape case, a new law was enacted by amending the Criminal Procedure
Code. This law introduced stricter penalties for rape offenders, including life
imprisonment and the death penalty. It also included severe punishments
for crimes like acid attacks, stalking, and voyeurism. The government made
changes to several sections of existing laws, including the Indian Penal
Code, the Criminal Procedure Code, the Indian Evidence Act, and
the Protection of Children from Sexual Offences Act.
12.Maternity Benefit Act, 1961 (Amended in 2017) – This law governs
the employment of women in specific workplaces during a particular period
before and after childbirth. It also ensures that women receive maternity
benefits and other related advantages.
13.Equal Remuneration Act, 1976 – This law mandates that both men and
women doing the same or similar work must be paid equally. It
also prohibits discrimination based on gender during hiring and in the terms
and conditions of employment.This law mandates that both men and women
doing the same or similar work must be paid equally. It also prohibits
discrimination based on gender during hiring and in the terms and conditions
of employment.
14.Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act,2013 –This law safeguards women from sexual
harassment in all types of workplaces, whether they are in the public or
private sector, organized or unorganized.

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 15.Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 – This law makes it illegal to choose or determine the
sex of a fetus before or after conception and aims to prevent the misuse of
prenatal diagnostic methods for sex selection, which can result in female
foeticide.
Landmark Supreme Court & other important judgments
Some of the significant judgements which empowers women in Atmanirbhar
Bharat are given below:
Vishaka Versus State of Rajasthan: (Sexual Harassment at Work Place): Social
worker from Rajasthan was brutally gang raped by five men for preventing a child
marriage. In a shocking decision, Trial court acquitted all five accused. { Vishakha
(group for women’s education and research), joined forces with four other women
organizations and filed a petition before the Supreme Court of India on the issue
“sexual harassment at work place”. On August 13,1997 supreme court
commissioned the Vishakha guidelines that defined sexual harassment and put the
onus on the employers to provide a safe working environment for women.
Vineeta Sharma Versus Rakesh Sharma3 (Daughter’s Coparcenery Right)
(2020) The Supreme Court held that daughters have equal coparcenary rights in
Hindu Undivided Family (HUF) property. The court held that this right arises by
taking birth. So when a daughter is born, she also steps into the coparcenary as that
of a son. However, a daughter born before can claim these rights only with effect
from the date of the amendment, i.e., September 9, 2005, with saving of past
transactions as provided in the Section 6(1) along with Section 6(5). Further, the
court also clarified that since the right in coparcenary is by birth, father coparcener
doesn’t need to be living as on 9.9.2005.
Indian Young Lawyer’s Association Versus The State of Karnataka9 (Access to
Places of Worship) It was held that the exclusionary practice at Sabrimala was
violating the rights of the women, since it imposed a restriction on their freedom
and as such the rule which placed a reaction on their entry was violative of their
right to worship. It was also held that exclusion of women cannot be considered as
a religious practice.
Conclusion Government, time and again, has taken various steps to empower
women and has introduced many new laws . Government has also signed number
of treaties and conventions in order to advance the position of women in the
society. “BETI BACHAO BETI PADHAO” is one such initiative introduced by
our PM Shri Narendra Modi. In order to be progressive, a nation must treat its men
and women equally, there should not be any sort of discrimination especially on
basis of gender. Empowering women is highly critical for a progressive nation.
Indeed, various constitutional provisions would make women ‘Atmanirbhar in true
sense in ‘Atmanirbhar Bharat’.

24
 Unit 3 [Children and the law]
Child Labour
Introduction:
Children are an important component of the social structure and the potential
future careers of the culture. Unfortunately, the problem of child labour (especially,
age group of 5- 14 years) exists in our country. Children receive a rude and
unpleasant introduction to life. They not only lack the basic necessities of life, but
are also forced to spend a major part of the day working in inhuman and unhealthy
conditions for a miserable pittance.
As per an estimate of ILO, there are between 190.7 million child labourers in the
world. Out of these million, half may be found in South and East Asia. By
employing children we are denying their various rights including right to
education, which is crucial for development. 40% of female sex workers are forced
into prostitution before the age of 18. Nearly 60% of the girls who are employed as
child labourers live in rural areas.
"Child" as defined by the Child Labour (Prohibition and Regulation) Act, 1986 is a
person who has not completed the age of fourteen years. A child of such tender age
is expected to play, study and be carefree about his life. But as a fact of nature,
expectations hardly meet reality. Children, by will or by force are employed to
work in harsh conditions and atmospheres which becomes a threat to their life.
Child labour leads to underdevelopment, incomplete mental and physical
development, which in turn results in retarded growth of children. Looking at the
2011 census, clearly shows that the number of child labourers in India is 10.1
million, out of which 5.6 million are boys and 4.5 million are girls.
As children form the future youth of India, it is highly crucial to provide all the
things they need, ranging from basic needs such as shelter, food, and clothing to
social needs such as education and other things. To achieve this, appropriate
legislative measures are needed in a complex society like India. With regard to
India, several legislations have been enacted to control the menace of child labour.
International Labour Organisation (ILO) defines the term child labour as, "work
that deprives children of their childhood, their potential and their dignity, and
that is harmful to physical and mental development. It refers to work that is
mentally, physically, socially or morally dangerous and harmful to children, or
25
work whose schedule interferes with their ability to attend regular school or
work that affects their ability to focus during school or experience a healthy
childhood."
Causes of Child Labour
Significant causes of child employment that can be understood keeping in mind the
indian scenario, are:
1. Poverty
In developing countries it is impossible to control child labour as children have
been considered as helping hand to feed their families, to support their families and
to feed themselves. Due to poverty, illiteracy and unemployment parents are unable
to bear the burden of feeding their children and to run their families. So, poor
parents send their children for work in inhuman conditions at lower wages.The
majority of the nation's population lives in poverty. Due to their inability to pay for
their children's education, poor parents force them to start working at a young age.
In reality, they are fully aware of the impact caused by frequently losing close ones
to poverty.They employ their young children in homes, businesses, and factories.
They are required to work as soon as possible to raise the income of their low-
income households. These choices are made just to provide a meagre life for their
family. However, such choices destroy children's physical and emotional health
since they rob them of their childhood at a young age.
2. Previous Debts
The poor economic conditions of people in india force them to borrow money. The
Illiterate populations go to money lenders and sometimes mortgage their
belongings in turn of the debt taken by them. But, due to insufficiency of income,
debtors find it very difficult to pay back the debt and the interest. This vicious
circle of poverty drags them towards working day and night for the creditor and
then the debtors drag their children too in assisting them so that the debts could be
paid off. Some children are forced to work in order to support their families
because they are under pressure to provide food and shelter as well as to pay off
debt that their parents owe. Some children, meanwhile, are sold into slavery
against their will.
3. Professional needs
There are some industries such as the 'bangle making' industry, where delicate
hands little fingers are needed to do very minute work with extreme excellence and
precision. adult's hands are usually not so delicate and small, so they require
children to work them and do such dangerous work with glass. This often resulted
in major eye accidents the children.
4. No space for alternatives
According to the International Labour Organization (ILO), a significant
contributing fact that pushes children into hazardous labour is a lack of available
alternatives, such as affordable schools and high-quality education. Children are
bound to work because the are dissatisfied and have no other means of earning.
There are not enough acceptable school facilities in many localities, especially
rural ones where child labour is rampant.

26
Even when schools are available, they are frequently too far away, challenging to
reach expensive, or the quality of instruction is so low that parents question
whether attendin school is actually worthwhile. Even after 75 years of
independence, there are still a nun of children whose right to education is denied
owing to their situations. This can only be managed by the effective
implementation of national schemes.
5. Social causes
The primary cause of child labour in India is also the country's social and
economic backwardness. Parents who are socially backwards do not send their
children to school. As a consequence, their children are compelled into child
labour. Many times, parents are unaware of different programmes for children's
education because of illiteracy. Child labour has been fostered by a lack of
education, illiteracy, and, as a result, a lack of understanding of rights among
children. Additionally, illiterate parents are unaware of the effects child labour has
on their children. Rural households have a compulsive reason for including
children in a variety of duties due to the situations of poverty and unemployment.
In actuality, India's child labour issue is still perpetuated by the remains of the
feudal, zamindari system.
6. Family Tradition
The cultural tradition in many countries is that children follow their parent's
footsteps with regard to their profession. Subsequently, it ends in child labour as
they tend to learn and practise that skill from a very young age, especially where
informal economy and small household businesses exist. Similarly, the education
of girls is often undervalued, leading to pressure on these girls to engage in child
labour, such as domestic duties.
7. Addiction, disease or disability
Due to addiction, illness, or disability, there is often no income in the family, and
the chil wages are the only source of support. Additionally, when the population
grows, unemployment rises, which has a negative effect on initiatives to prevent
child labour. In order to boost the family's income, parents are prepared to send
their children to work instead of enrolling them in school.
8. Poor compliance with laws
In today's culture, regulations guarantee that people have the right to a good
education, access to quality healthcare, and self-care. Every person has the right to
play the game he likes, and enjoy all the means of enjoyment, and when he
develops, to acquire work where he may earn well and contribute to society and
nation. But child labour is still being used in India since the regulations are not
being followed properly. Only rigorous adherence to the relevant laws will make it
unlawful.
9. Discrimination bw girls and boys
There's a general belief that boys are stronger than girls and that they cannot be
comp on an equal footing. In our culture, there are numerous instances where girls
are denie the opportunity to pursue their education. Girls who are considered as
being weaker th boys are denied access to education and school. Girls are often
seen working alongside their parents in households that are labourers.
27
10. Other minor causes
Some shops, businesses, and factory owners hire them out of a desire for cheap
labour so that they may pay them less, which amounts to hiring cheap labour.
Shopkeepers and other small company owners make them work just as hard as
older people while only paying them half as much. Child labour also reduces the
likelihood of theft, greed, or money misappropriation. Child labour has been
encouraged in India as a result of the growth of globalisation, privatisation, and
consumerist culture as well as the demand for inexpensive labour and its
connection to the financial needs of low-income families.
The Constitutional Provisions:
Our Constitution framers were aware about the problem of child labour and
compulsory education of children, so they made prohibition of children in certain
employment as a fundamental right under Article 24 and issued many Directive
Principles of State Policies in Part IV. They made provisions under Article 45, by
stating that State will make the provisions for free and compulsory education for
every child below the age of 14 years within 10 years from the implementation of
the Constitution. Unfortunately, it took 52 years to make it a fundamental right
under the Constitution. 86th Constitutional Amendment ha inserted it as
fundamental right and fundamental duty of the parents to send their ward to school.
The Constitutional Provisions may be described as follows:-
Article 15 (3) : The Article provides guarantee of right to equality without any
discrimination ; but, on the other hand, empowers the State to make the special
provisions relating to child, which will not be violative of right to equality.
Article 21: No person shall be deprived of his life or personal liberty, except
according to procedure established by law. The Supreme Court held that “life”
includes free from exploitation and to live a dignified life.
Article 21A: The State shall provide free and compulsory education to all children
of the age of six to fourteen years, in such manner as the State may, by law,
determine. The Supreme Court directed that where children are allowed to work, in
such establishment, it is the duty of the employer to make provisions for the
education of child labourers.
Article 23: Traffic in human beings and beggar and other similar forms of forced
labour are prohibited and any contravention of this prohibition shall be an offence
punishable in accordance with law.
Article 24: No child below the age of 14 years shall be employed to work in any
factory or mine or engaged in any other hazardous employment. The Supreme
Court held that “hazardous employment” includes construction work, match boxes
and fireworks. Therefore, no child below the age of 14 years can be employed.
Positive steps should be taken for the welfare of such children as well as for
improving the quality of their life.
Article 39 (e) : The State shall, in particular, direct its policy towards securing the
health and strength of the tender age of children so that they are not abused and
that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength.

28
 Article 39(f): The State shall, in particular, direct its policy towards securing that
children are given opportunities and facilities to develop in a healthy manner and
in conditions of freedom and dignity, and that childhood and youth are protected
against exploitation and against moral and material abandonment.
Article 45 : The State shall endeavour to provide early childhood care and
education for all children until they complete the age of six years.
Article 51A (k): It shall be the duty of every citizen of India, who is a parent or
guardian to provide opportunities for education to his child or ward, as the case
may be, between the age of six to fourteen years.
Child Labour Laws in India
When in the 20th Century, child labour became so prominent that news of factory
hazards and mishappenings taking innocent children's life, flashed all around in the
newspapers, then was the time, a need for legislation and statutes were felt to
prohibit the mal practice of child labour. Today, there are sufficient statutes
condemning and prohibiting child labour such as:
The Factories Act of 1948: The Act prohibits the employment of children below
the age of 14 years in any factory. The law also placed rules on who, when and
how long can pre-adults aged 15-18 years be employed in any factory.
The Mines Act of 1952: The Act prohibits the employment of children below 18
years o age in a mine. Mining being one of the most dangerous occuptions, which
in the past has led to many major accidents taking life of children is completely
banned for them.
The Child Labour (Prohibition and Regulation) Act of 1986: The Act prohibits
the employment of children below the age of 14 years in hazardous occupations
identified in a list by the law. The list was expanded in 2006, and again in 2008.
The Juvenile Justice (Care and Protection) of Children Act of 2000: This law
made it a crime, punishable with a prison term, for anyone to procure or employ a
child in any hazardous employment or in bondage. This act provides punishment to
those who act in contravention to the previous acts by employing children to work.
The Right of Children to Free and Compulsory Education Act of 2009: The
law mandates free and compulsory education to all children aged 6 to 14 years.
This legislation also mandated that 25 percent of seats in every private school must
be allocated for children from disadvantaged groups and physically challenged
children.

Case Law - Labourers work on Salal hydro-electric project v. State of Jammu &
Kashmir and Others (1983)
In Labourers work on Salal hydroelectric project v. State of Jammu & Kashmir and
Others(1983), a bench of Justices P. N. Bhagwati and R. B. Misra ruled that no
child under the age of 14 must be employed by any contractor or subcontractor on
any factories in the projects. If any contractor or subcontractor uses underage
labour, quick instructions for their break must be given right away, and a summary
report must be sent regarding punishment .

29
Conclusion –
If awareness about the cons of child labour is spread across the nation and strict
policing of implementation of existing laws are done, India can combat the issue of
child labour. Every individual must understand how important it is for the children
to grow and study, as they are the ones who will shape the future of the nation.

Unit 3 [Children and the law]

Sexual Exploitation
Introduction:
Almost one fourth of India’s population is in the age group of 0-14 years and our
country has one of the world’s largest population of children estimated at 444
million children. The Constitution of India under Directive Principles of State
Policy vide Article 39 (f) mandates states to formulate policies to ensure that
children are given opportunities and facilities to develop in a healthy manner and
in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment. Our Constitution
also provides protection for children from being abused or forced by economic
necessity to enter occupations unsuited to their age or strength.
Despite the safeguards provided by the Constitution, children remain a vulnerable
populace in our country and are victims of several crimes committed against them.
Crimes against children, especially the crimes of sexual nature have adverse
impact on the victim child and leaves them with a lifelong trauma.
DEFINING SEXUAL EXPLOITATION OF CHILDREN
Child sexual abuse refers to sexual activities committed against children, by adults
or peers and usually involves an individual or group taking advantage of an
imbalance of power. Force may be used, with offenders frequently using authority,
power, manipulation, or deception. Child sexual exploitation involves the same
abusive actions. However, an additional element must also be present - exchange
of something (e.g., money, shelter, material goods, immaterial things like
protection or a relationship), or even the mere promise of such. It can occur offline,
online and through a combination of both.
Background
India has strong legal protections against offences related to child sexual
exploitation. The country has also ratified most major international conventions

30
relevant to the fight against sexual exploitation of children and is party to
additional international and regional frameworks. India has also gradually adopted
and amended national laws related to child sexual exploitation in order to align
with its international and regional commitments.With each passing year, crimes
against children are on a steep rise and until 2012, we did not have a law dedicated
to address crimes against children, especially ones of sexual nature. To curb the
growing cases of child sexual abuse in our country, POCSO Act was enacted in
the year 2012 and it came into force on 14-11-2012.
Protection of Children from Sexual Offences Act, 2012:
POCSO Act is a gender neutral legislation providing for the welfare and safety of
children irrespective of their gender. As per section 2(d) of POCSO Act, a child is
any person who is below eighteen years of age. A victim under the Act can be a
male or female child. The Act does not create any distinction between the victim
or the perpetrators on the basis of their gender. There are instances when women
are convicted under this Act for child sexual abuse.
NATURE OF OFFENCES:
The POCSO Act is a comprehensive legislation containing 9 chapters dealing with
the offences, punishment and procedure. There are three broad categories of sexual
offences under POCSO Act:
1. Sexual Assault –
(i) Penetrative sexual assault (sections 3 and 4) ,
(ii) Aggravated Penetrative sexual assault (sections 5 and 6)
2. Sexual Harassment (sections 11 and 12)
3. Using child for pornography (section 13)
CONCLUSION:
India had no legislation until 2012 to address the evil offences committed against
male and female children. POCSO Act being a gender neutral legislation aims to
provide safety to children and punish the offenders based on gravity of offences
committed against children and addresses all aspects of child sexual abuse. The Act
was amended in the year 2019 making punishments under the Act more stringent.
Sensitization of public regarding child sexual abuse and POCSO Act is very
essential in view of low rate of reporting of crimes under the Act. Child sexual
abuse is a multidimensional problem with medical, social, psychological and legal
implications. Child sexual abuse cases seldom present with definite symptoms of
genital trauma. As a result, evaluating a victim of child sexual abuse involves
specialized knowledge and methods in history collection, forensic interrogation,
and medical examination. Involvement of a mental health expert is necessary
during investigation and trial stage to mitigate and address the adverse effects of
child sexual abuse on victim children’s mental health.

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 Unit 3 [Children and the law]
Adoption & Maintenance and Related Problems
INTRODUCTION
"Adoption is the foundation of a parent-child relationship through a lawful and
social process other than the birth procedure. It is a procedure by which a child of
one arrangement of guardians turns into the child of another arrangement of
guardians or parent. Though adoption is an age old practice, adoption laws have
come into being only very recently, with England passing the first laws in the year
1926. A legal framework was established so as to protect the rights of the adopted
child.
While on one hand children born in India are being pampered, taken care of and
given all the necessities for their all-round development, on the other hand there
are over 60,000 children being abandoned per year in India. In some cases, these
children become victims of human trafficking and sexual violence. In fortunate
cases, the abandoned children are taken to any adoption agency and may hope for a
better life while waiting to get adopted. Such cases, of children being given a
chance at a second life through adoption are on the rise. In its simplest of senses,
adoption is a process whereby a person assumes the parenting for another and,
in doing so, permanently transfers all rights and responsibilities, along with
filiations, from the biological parent or parents.
In India, adoption falls under the ambit of personal laws, and due to the incidence
of diverse religions practiced in our country, mainly two different laws operate.
Muslims, Christians, Parsis and Jews are governed by the Guardians and Wards
Act, 1890, as formal adoption is not allowed in these religions. Hindus, Sikhs,

32
Buddhists and Jains on the other hand follow the Hindu Adoption and
Maintenance Act, 1956.
What is legal adoption?
According to section 2(aa) of the Juvenile Justice (Care and Protection of
Children) Amendment Act, 2006, “adoption means the process through which the
adopted child is permanently separated from his biological parent and becomes
the legitimate child of his adoptive parents with all right, privileges and
responsibility that are attached to the relationship”.
HISTORICAL PERSPECTIVE OF INDIAN ADOPTION
In India, adoption has been practiced for thousands of years. Hinduism being the
major religion practiced in India, epics and history has records of saints and royals
who were adopted and who did adopt. Ramayana and Mahabharata are the two
such great epics of Hinduism which bear references to adoption. Historically,
where a lack of male offspring happened, couples went in for embracing a male
child to assign him as legal beneficiary. As per Hindu convention, children are vital
and a dead parent's spirit can just accomplish paradise on the off chance that that
individual has a child to light the memorial service fire, and salvation can be
accomplished through children who offer tribal love.
ADOPTION LAWS IN INDIA
Adoption policies and social transformation could have developed because of the
way that India amid those circumstances was led by the British. The primary
Children's Act was established in the Madras and Bombay Presidencies in 1920,
giving the express the duty to care for dejected and ignored children. The
fundamental motivation behind drafting this enactment was to give care and
assurance to children. Additionally changes that went with Independent India since
1947 achieved changes in the social enactment and arrangements.
The custom and practice of adoption in India dates back to the ancient times.
Although the act of adoption remains the same, the objective with which this act is
carried out has differed. It usually ranged from the humanitarian motive of caring
and bringing up a neglected or destitute child, to a natural desire for a kid as an
object of affection, a caretaker in old age, and an heir after death.
But since adoption comes under the ambit of personal laws, there has not been a
scope in the Indian scenario to incorporate a uniform law among the different
communities which consist of this melting pot. Hence, this law is governed by
various personal laws of different religions. Adoption is not permitted in the
personal laws of Muslims, Christians, Parsis and Jews in India. Hence they usually
opt for guardianship of a child through the Guardians and Wards Act, 1890. Indian
citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a
child. The adoption is under the Hindu Adoption and Maintenance Act of 1956 that
was enacted in India as a part of the Hindu Code Bills. It brought about a few
reforms that liberalized the institution of adoption

HINDU ADOPTION AND MAINTENANCE ACT, 1956:

33
The Hindu Adoption and Maintenance Act was passed after Independence as part
of modernizing and codifying Hindu Law. The Act to some extent reflects the
principles of equality and social justice by removing several (though not all)
gender based discriminatory provisions. This Act deals with topics such as capacity
to adopt, capacity to give in adoption, effect of adoption, gender bias and such
others.
Under THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 following
category of people can make adoptions:
 “Any male Hindu (including Buddhist, Jain or Sikh by religion) who is of sound
mind, not a minor and is eligible to adopt a son or a daughter”. But if such male
has living spouse at a time of adoption then he can adopt a child only with consent
of his wife (unless she has been declared incompetent to give her consent by the
court).
 “Any female Hindu (including Buddhist, Jaina or Sikh by religion) who is not
married, or if married, whose husband is not alive or her marriage has been
dissolved or her husband has been declared incompetent by the court has the
capacity to take a son or daughter in adoption”.
CONDITIONS FOR ADOPTION BY HINDU COUPLES OR SINGLE PARENT
1. “In case of adoption of a son by any Hindu male or female, there should not be
any living son in the succeeding three generation of the party (whether by
legitimate blood relationship or by adoption) at the time of adoption.
2. In case of adoption of a daughter by any Hindu male or female, they should not
have any daughter or son’s daughter at the time of adoption.
3. Where there is an adoption of a daughter by a male then the adoptive father
should be at least twenty-one years older than the child.
4. Where there is an adoption of a son by a female than the adoptive mother should
be at least twenty-one years older than the child”.
INTERCOUNTRY ADOPTION:
In India, there is no separate act that governs adoption by foreign citizens or NRIs
but it is covered under Guidelines Governing Adoption of Children, 2015. Under
these guidelines misuse or illegal use of the children through adoption is prevented.
As per the Supreme Court Guidelines for intercountry adoption a foreign parent
can adopt an Indian child before he/she completes the age of 3 years.
In the absence of any concrete Act on intercountry adoption, the provisions of
Guardians and Wards Act, 1890 will be followed for adoption. In case of adoption
of abandoned, abused and surrendered children all intercountry adoptions shall be
done only as per the provisions THE JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, 2015 and the adoption regulations framed
by the Authority.
GUARDIANS AND WARDS ACT, 1890:
As the name itself suggests, the Hindu Adoption and Maintenance Act were mostly
the guidelines for the Hindu society. Another law had to be made which was
sensitive to the personal laws of other religions which did not come under the
Hindu Adoption and Maintenance Act of 1956. This gave rise to the Guardians and

34
Wards Act of 1890. The Guardians and Wards Act, 1890 was a law to supersede all
other laws regarding the same. It became the only non-religious universal law
regarding the guardianship of a child, applicable to all of India. This law is
particularly outlined for Muslims, Christians, Parsis and Jews as their personal
laws don’t allow for full adoption, but only guardianship. It applies to all children
regardless of race or creed. Following is an overview of the act.12 It was stated
that any child who had not completed 18 years of age was to be a minor. This child
would be appointed guardians by the court or any other appointed authority. They
would decide who would take place as the said child’s guardian or by removing
another as a guardian. All these procedures took place only after an application had
been placed by the person who was willing to take a child under himself and to act
as his guardian. The applications should contain all the possible information that
would have been required, including the information about the guardian and any
reason as such for the guardianship. This was just the first step. Once the court
admits the application, a date for a hearing would be set. The court will hear
evidence before making a decision. Unlike in the procedures given in the Hindu
Adoption and Maintenance Act, 1956, where a person once adopted has a single set
of parent, here a minor and his property could have more than one guardian. It was
required under these cases of guardianship that the court use its discretionary
power and considered the interests of the minor. His/her age, sex, religion, the
compatibility quotient with the guardian, the death of the parent, etc. must be taken
into consideration. The minor’s preference may also be taken into consideration.
As per the Guardianship law and The Juvenile Justice (Care and protection of
children) ACT, 2015 following child may be adopted namely-
Who is not a Hindu?
Who is minor (not completed the age of 18 years).
An orphan or abandoned or surrendered child.
CONCLUSION
Adoption is a noble cause, which brings happiness to kids, who were abandoned,
or orphaned. This gives a chance for the humane side of civilization to shine
through. It’s a beneficial program where the child is treated as the natural born
child and given all the love, care and attention. At the same time, it fills the void in
the parents who yearned for kids, their laughter and mischief echoing off the walls
of a home. Although a few changes could be made to make all the laws regarding
adoption a little, uniform. ‘Adopting one child won’t change the world: but for that
child, the world will change.

Understanding the Laws of Child Maintenance in India

In India, child maintenance laws exist to ensure that children receive financial
support from their parents, especially in cases where parents have separated or
divorced. The laws vary depending on the religion of the parents and the specific
circumstances of the case.

35
The term "maintenance" denotes the financial support provided by one party to
cover the cost-of-living expenses, which includes provisions for food, clothing,
residence, education, and medical attendance and treatment.
According to Section 3(b) of the Hindu Adoption and Maintenance Act, 1956 in
the case of an unmarried daughter, maintenance shall also cover reasonable
expenses incurred during and pertaining to her marriage. The objective of these
laws is to ensure that children receive proper care, education, and upbringing, and
that both parents take equal responsibility for their child's welfare.

Children Maintenance Under Hindu Law

The provisions relating to maintenance for children under the various statues of
Hindu Law are as follows -
 Hindu Marriage Act, 1955
Section 26 of the Hindu Marriage Act, 1955 provides for orders related to custody,
maintenance, and education of minor children during the proceedings under the
Act. A minor child is one who has not yet attained 18 years of age. These
proceedings may be for a decree of nullity, divorce, judicial separation, or
restitution of conjugal rights between their parents.
Under this Act, both the parents or either father or mother, are liable to maintain
the child as per court orders. The court considers the wishes of the child while
making such orders and allowances. These orders are subject to change in
circumstances of the various parties involved and may be altered from time to
time.
Any application for maintenance and education of minor children during the
pendency of the proceedings has to be decided within sixty days from the date of
service of notice on the opposite party.

 Hindu Adoption and Maintenance Act, 1956

According to Section 20 of the Hindu Adoption and Maintenance Act, 1956, a
Hindu male or female is obligated to maintain his or her legitimate/illegitimate
minor children and unmarried daughters even after they have attained majority.
The Act clearly spells out that the obligation to maintain unmarried daughters who
are unable to maintain themselves extends insofar as they cannot do so out of their
own earnings or other property.
It was held in the case of Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266
that both, a Hindu divorcee father and a Hindu divorcee earning mother are obliged
to contribute for maintenance of their children under the Hindu Adoption and
Maintenance Act, 1956. Father is not exclusively responsible to maintain children
regardless of mother being affluent.
Additionally, in the case of Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997)
7 SCC 7, it was held that an unmarried daughter unable to maintain herself is
entitled to claim maintenance under the Hindu Adoption and Maintenance Act,

36
1956. The father is obliged to maintain her unmarried daughters even if they are
living separately with their mother.
While determining the amount of maintenance, the court considers various factors
such as position and status of the parties, reasonable wants of the claimants, if the
claimant is living separately, whether the claimant is justified in doing so,
claimant's income and value of property held by him or her, etc. Such amount may
be modified if there is a change in circumstances warranting so.
However, if a child ceases to be a Hindu (changes his religion), he/she cannot
claim maintenance under this Act.
The Act also specifies that the heirs of a deceased Hindu are bound to maintain his
or her dependents out of the estate inherited by them. Whereas, dependents include
deceased person's minor son, unmarried daughter, widowed daughter, minor
illegitimate son, minor illegitimate daughter.

 Children Maintenance Under Muslim Law

Under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act of
1986, a Muslim woman who has divorced or who has been divorced by her
husband has the right to receive reasonable and fair provision and maintenance for
any children she gave birth to, whether before or after the divorce, for a period of
two years from the respective dates of their birth. Upon non-payment of the same,
such divorced woman can tender in an application to the Area Magistrate for an
order of maintenance. He, after ascertaining the fact that her husband despite
having sufficient means, has neglected or refused to pay her the maintenance for
the children, may within one month of such application order her husband to pay
such reasonable and fair provision and maintenance to her as he may determine
while placing due regard to her needs, the standard of life enjoyed by her during
her marriage and the means of her former husband. It is the responsibility of the
former husband to provide this maintenance, and failure to comply with the order
issued by the Magistrate, without a valid reason, can result in imprisonment of the
husband for up to one year.
It is important to note that maintenance for a child beyond the initial two years
from his/her birth can be claimed by the mother from the father under Section 144
of the BNSS. Right under Muslim Women (Protection of Rights on Divorce) Act,
1986 is that of the mother to claim maintenance for children for two years from
their date of birth and is distinct and independent of the right to maintenance under
beneficial provision of Section 125 CrPC to minor children unable to maintain
themselves. This position was clarified in the case of Noor Saba Khatoon v. Mohd.
Quasim, (1997) 6 SCC 233.

 Children Maintenance Under Christian Law

For Christians in India the law regulating maintenance for children is the Indian
Divorce Act, 1869.
Under the Indian Divorce Act, 1869, "minor children" means unmarried children
who have not completed the age of eighteen years, except for sons of Native

37
fathers who are under sixteen years and daughters of Native fathers who are under
thirteen years.
As per Section 41 to 44 of the Act, in any suit for obtaining a judicial separation or
divorce or nullity, the Court may make interim orders and provide for the custody,
maintenance, and education of the minor children whose parents' marriage is the
subject of the suit. The Court may also direct proceedings to be taken for placing
such children under its protection. The application with respect to the maintenance
and education of the minor children should be disposed of within sixty days from
the date of service of notice on the opposite party.
After a decree of judicial separation or divorce or nullity the Court may make all
such orders and provisions as may be required from time to time, for the custody,
maintenance, and education of the minor children upon application by petition as
could have been made by such decree or interim orders in case the proceedings for
obtaining such decree were still pending.
The amount of maintenance is determined based on the income and expenses of
both parents, as well as the child's needs.

 Children Maintenance Under Parsi Law

For Parsis in India the law regulating maintenance for children is the Parsi
Marriage and Divorce Act, 1936.
Under Section 49 of the Parsi Marriage and Divorce Act, 1936, in any suit related
to divorce or separation, the Court can pass interim orders and make provisions in
the final decree for the custody, maintenance, and education of children below the
age of eighteen years whose parents' marriage is the subject of the suit. The Court
can also make, revoke, suspend, or vary such orders and provisions upon
application by petition after the final decree. However, the application with respect
to the maintenance and education of the children during the suit should be disposed
of within sixty days from the date of service of notice on the respondent.
Additionally, as per Section 50 of the Act, if the Court pronounces a decree of
divorce or judicial separation for the wife's adultery and she is entitled to any
property, the Court may order a reasonable settlement of up to one-half of the
property for the benefit of the children of the marriage or any of them.

 Children Maintenance Under Bharatiya Nagarik Suraksha Sanhita

(BNSS), 2023
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023provides for maintenance
of children in cases where parents are not able to provide for their children. Under
Section 144 BNSS, a magistrate may order the father or mother of a minor child to
pay maintenance to the child, either on a monthly or lump-sum basis.
The benefit under Section 144 BNSS is available to all children irrespective of
religion.
According to Section 144 BNSS, if a person who despite having sufficient means
neglects or refuses to provide maintenance, the Magistrate may order him/ her to

38
make a monthly allowance for maintenance. The order under this section may be
sought by or on behalf of the following people:
1. Their legitimate or illegitimate minor child who is unable to provide for
itself
2. Their legitimate or illegitimate major child (except for a married daughter)
who is unable to provide for itself due to a physical or mental abnormality or
injury
3. Their married daughter till the time she reaches majority, if her husband is
unable to maintain her
4. Their father or mother who are unable to maintain themselves.
This section also provides for maintenance pendente lite i.e., during the pendency
of such proceedings.
The amount of maintenance is determined based on the needs of the child and the
income of the parent.
In the case of Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359 it was held
that a case for grant of maintenance under section 144 BNSS arises only when a
person despite having sufficient means neglects or refuses to maintain his
legitimate or illegitimate minor children who are unable to maintain themselves.
If a person fails to comply with the order of the Magistrate, they may be sent to
prison. The order of maintenance may also be changed by the Magistrate if there is
proof of a change in circumstances. Additionally, the Magistrate must decide on
any application for interim maintenance during the legal proceedings within sixty
days of receiving notice of the application.
It is worthwhile to note that in the case of Bakulabai v. Gangaram, (1988) 1 SCC
537, it was held that a child born out of a void marriage between a woman and a
man who already has a wife is to be treated as a legitimate child who is entitled to
maintenance under Section 144 BNSS.

Unit 3
Children and Education – A Constitutional Mandate
Introduction
Education is a pivotal right that not only fosters individual growth but also fuels
the advancement of societies at large. For children, education is particularly crucial
as it lays the groundwork for their future, equipping them with the knowledge,
skills, and values necessary to navigate life’s challenges and opportunities.
Recognizing the profound impact of education on both personal and societal
development, many nations, including India, have prioritized ensuring access to
quality education for all children.
In India, the commitment to children’s education is enshrined in its legal
framework, encompassing constitutional provisions, specific enactments, and
judicial interpretations. The Indian Constitution, through various articles and
amendments, mandates the state to provide free and compulsory education to

39
children, recognizing it as a fundamental right. Complementary legislation, such as
the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act),
operationalizes this constitutional mandate, setting forth specific obligations and
standards for the provision of elementary education.
Furthermore, the Indian judiciary has played a significant role in interpreting and
reinforcing the right to education, delivering landmark judgments that have shaped
the landscape of children’s education in India. These legal provisions and judicial
pronouncements collectively underscore the importance of education as a means of
empowering individuals and promoting equitable social development.
Legal Framework and Enactments
1. Constitutional Provisions The Constitution of India provides a robust
foundation for children’s education through various articles:
 Article 21A: Introduced by the 86th Amendment Act of 2002, this article
mandates free and compulsory education for all children aged 6 to 14 years.
It obligates the state to provide free and compulsory education to all children
in this age group.
 Article 45: Initially a directive principle, this article now supports early
childhood care and education for children below the age of 6 years. It
emphasizes the importance of early childhood development and education as
a critical foundation for lifelong learning and development.
 Article 51A(k): It places a duty on parents or guardians to provide
opportunities for education to their children between the ages of 6 and 14
years. This article underscores the shared responsibility of the state and
parents in ensuring that children receive education.
1. Right of Children to Free and Compulsory Education Act, 2009 (RTE
Act) The RTE Act operationalizes Article 21A and ensures that every child
has the right to full-time elementary education in a formal school that meets
certain essential norms and standards. Key provisions include:
 Section 3: Guarantees the right to free and compulsory education to every
child of the age of six to fourteen years. This section mandates that no child
shall be liable to pay any kind of fee or charges or expenses which may
prevent him or her from pursuing and completing elementary education.
 Section 8: Obligates the government to provide free and compulsory
elementary education and ensure that no child is discriminated against or
denied admission. The government must ensure that children belonging to
disadvantaged groups are not excluded from the educational system.
 Section 12: Mandates that private unaided schools admit at least 25% of
children from weaker sections and disadvantaged groups in their entry-level
classes. This section aims to promote social inclusion and ensure that
children from all backgrounds have access to quality education.
1. Juvenile Justice (Care and Protection of Children) Act, 2015 This act
provides for the care, protection, development, treatment, and social
reintegration of children in conflict with law and children in need of care and

40
 protection. It emphasizes the right to education for children who are under
institutional care.
 Section 30: Lays down that the primary responsibility of the State is to
ensure that the basic needs of children are met, and their rights are protected,
which includes education. This section mandates that children in need of
care and protection receive proper education and are integrated into
mainstream educational systems.
Case Laws
1. Unnikrishnan J.P. v. State of Andhra Pradesh (1993) This landmark
judgment by the Supreme Court of India recognized the right to education as
a fundamental right under Article 21. The court stated that the right to
education up to the age of 14 years is implicit in the right to life and personal
liberty. The judgment laid down a scheme where the state was obligated to
provide free education to children up to 14 years, and thereafter, the
obligation to provide education was subject to the state’s economic capacity
and development. This case was instrumental in the introduction of Article
21A in the Constitution.
2. Mohini Jain v. State of Karnataka (1992) In this case, the Supreme Court
held that the right to education is a fundamental right under Article 21. The
court struck down the capitation fee charged by private institutions,
affirming that access to education must not be denied due to economic
constraints. The judgment emphasized that the state must ensure that
education is available to all, and financial barriers should not prevent
children from accessing education.
3. Avinash Mehrotra v. Union of India (2009) This case emphasized the
importance of safety measures in schools. The Supreme Court directed that
all schools must comply with basic safety standards to protect children and
ensure a conducive learning environment. The court’s directions included
the installation of fire extinguishers, construction of emergency exits, and
conducting regular safety drills. This case highlighted the importance of
creating a safe and secure environment for children in schools.
4. State of Tamil Nadu v. K. Shyam Sunder (2011) The Supreme Court
reiterated that the right to education means the right to quality education.
The court held that the state must ensure a uniform standard of education for
all children, regardless of their socio-economic status. The judgment stressed
that merely providing access to education is not enough; the quality of
education must also be maintained to ensure that children receive a
meaningful and effective education.
5. Environmental and Consumer Protection Foundation v. Delhi
Administration (2012) In this case, the Supreme Court addressed the issue
of basic infrastructure in schools. The court directed that all government and
private schools must have basic infrastructure facilities such as drinking
water, toilets, and sufficient classrooms. The judgment emphasized that the
right to education includes the right to a conducive learning environment,
and the state must ensure that schools are equipped with the necessary
facilities.

41
Challenges and Implementation
Despite robust legal provisions, the implementation of the right to education faces
several challenges:
 Infrastructure: Many schools, especially in rural areas, lack basic facilities
such as classrooms, toilets, and drinking water. The absence of these
facilities affects the overall learning environment and can lead to higher
dropout rates.
 Quality of Education: There is a significant gap in the quality of education
provided, with disparities between private and government schools.
Ensuring uniform standards and improving the quality of education in
government schools remain critical challenges.
 Teacher Training: The quality of teacher training and recruitment processes
often impacts the standard of education imparted. Adequate training and
professional development opportunities for teachers are essential to enhance
the quality of education.
 Dropout Rates: High dropout rates, particularly among marginalized
communities, hinder the universalization of education. Addressing socio-
economic barriers and providing support mechanisms for children at risk of
dropping out are essential for retaining children in schools.
Conclusion
The legal framework governing children’s education in India is comprehensive,
with the Constitution and various enactments ensuring that every child has the
right to quality education. Landmark case laws have further reinforced this right,
making it an integral part of the right to life and personal liberty. However,
effective implementation remains crucial to realizing the full potential of these
legal provisions. Ensuring that every child receives quality education requires
sustained efforts, adequate resources, and a commitment to addressing the systemic
challenges that persist in the educational landscape. By overcoming these
challenges, India can fulfill its constitutional mandate and ensure that every child
has the opportunity to realize their full potential through education.

Unit 3 [Different abled, third gender and the law]

Law relating to differently abled: Equality and Justice Issues
Introduction
Today disabled persons's constitute the largest minority in the world; more than
650 million individuals i.e. 10 percent of the world's total population suffer from
some type of disability. In the majority of countries, at least 1 out of 10 persons has
a physical, mental or sensory impairment. In India more than 50 million of the
people are facing problem of disability in one way or another. Although the
Constitution of India guarantees persons with disabilities the full range of civil,
political, economic, cultural and social rights, the arrangements necessary to
translate the constitutional guarantees into reality have been conspicuously absent
till recently. They are often denied basic human rights and unwelcomed in the
society. This is particularly so when the disability is mental or psychological. Only

42
After in the last quarter of the 20th century, there has been growing awareness in
the disability sector both at the national and international levels. Effects of
disability- based discrimination have been particularly severe in fields such as
education, employment, housing, transport, cultural life and access to public place
and services. Appropriate measures are required to address the existing
discrimination and to promote thereby opportunities for persons with disabilities in
social life and development.
CONCEPT AND MEANING OF DISABLEMENT
Disabilities is an umbrella term, covering impairments, activity limitations, and
participation restrictions. An impairment is a problem in body function or
structure; an activity limitation is a difficulty encountered by an individual in
executing a task or action; while a participation restriction is a problem
experienced by an individual in involvement in life situations. Thus, disability is a
complex phenomenon, reflecting an interaction between features of a person’s
body and features of the society in which he or she lives. — World Health
Organization, Disabilities
Disability is not a tragedy but an inconvenience. As noted above, about 650 million
persons or one-tenth of the world’s population are estimated to be disabled in one
form or another, e.g., Visual, auditory, physical, speech, cognitive and
neurological. Unlike the disability legislation in various countries, the persons with
Disabilities (Equal opportunity, Protection of Rights and Full Participation), Act
1995 in India, recognises only limited forms of disabilities such as
I. Blindness;
II. Low vision;
III. Leprosy-cured;
IV. Hearing impairment;
V. Locomotors disability;
VI. Mental retardation
VII. Mental illness
Thus Disability means the state or quality of being mentally or physically disabled
or weakness, incapacity or inability to hold a certain job because of physical or
mental handicap, want or legal qualification.

NATIONAL LEGAL FRAMEWORK

“Law, is a pledge that the citizens of a state will do justice to one another”. -
CONSTITUTION OF INDIA
Equality, dignity, autonomy and liberty are the founding principles on which
international human rights law is premised. These values have sufficiently
influenced the fundamental law of democratic polity and are reflected in
Constitutions of most democratic States including India.. The Preamble to the
Constitution of India while giving a structure and philosophy of governance
clearly proclaims to, ...secure to all its citizens; Justice, social, economic and
political; Liberty of thought, expression, belief, faith and worship; Equality of

43
status and of opportunity; and to promote among them all Fraternity assuring
the dignity of the individual and the unity and integrity of the Nation.
 Equality
Under right to equality the Constitution of India guarantees to all citizens equality
before law and equal protection of law (Article 14); and it prohibits discrimination
on grounds of ‘religion, race, caste, sex, place of birth or any of them’ (Articles 15
and 16). Further, to ensure equality in the outcome, it encourages the State, under
Articles 16(3) and 16(4), to frame any law or make provision for the reservation of
appointments or posts in favour of any backward class of citizens, which, in the
opinion of the State, is not adequately represented in its services.
 Non-Discrimination
The formal recognition of discrimination on grounds of disability is a recent
phenomenon and laws enacted even twenty years ago generally did not include
disability in the list of prohibited discriminations. For instance, the Constitution in
Articles 15 and 16 prohibits discrimination in the matter of employment and access
to public facilities on grounds of religion, race, caste, sex and place of birth, but is
silent on disability. In fact, the service rules until 1995 prevented entry of persons
with disabilities in higher grades of service. These rules gave the employer the
authority to force premature retirement in public interest and often employees who
acquired disability during service were either forced out of job or got their rank
reduced. In most cases their opportunity for career enhancement was suspended
forever.
 Directive Principles of State Policy and the Fundamental Rights
The Preamble, the Directive Principles of State Policy and the Fundamental Rights
enshrined in the Constitution, envisage a very positive role for the State towards its
disadvantaged citizens.
Article 41 declares that, ‘(T)he State shall, within the limits of its economic
capacity and development make effective provision for securing the right to work,
to education and to public assistance in cases of unemployment, old age, sickness
and disablement.’
Article 46 lays down an obligation on the State ‘(T) to promote with special care
the educational and economic interests of the weaker sections of the people, and …
protect them from social injustice and all forms of exploitation.’
PROTECTION OF HUMAN RIGHTS ACT, 1993
After ratification of International Covenant on Economic, Social and Cultural
Rights (ICESCR) and International Covenant on Civil and Political Rights
(ICCPR), India brought into force the Protection of Human Rights Act, 1993. This
Act provides for the establishment of National Human Rights Commission and
States Human Rights Commissions for better protection of human rights. Section
2(d) of this Act defines ‘human rights’ as: ‘the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution or embodied
in international covenants and enforceable by courts in India’. Thus, the Act
provides a mechanism to monitor the implementation of various constitutional
provisions and obligations under international covenants on different rights,

44
including economic, social and cultural rights. This also indicates India’s readiness
to implement non-justiciable rights.
DISABILITY LAWS:
During the 1970s a distinct self-advocacy movement of people with disabilities
started a sustained campaign demanding protection and recognition of their human
rights. Towards this end, it sought enactment of a comprehensive legislation having
a rights based approach with special emphasis on social and economic rights.
Though the government recognised the need for such a legislation as early as 1980,
it was enacted only in 1995. The delay could be attributed to the fact that the
Indian Constitution while distributing legislative powers between the Centre and
States kept the disability issue in the State list at Entry 9 of Schedule 7. The
Parliament of India gained competence to legislate on disability issues with the
signing of the Proclamation of Equality and Full Participation of People with
Disabilities in Asian and Pacific Region. Article 249 of the Constitution empowers
the Parliament to legislate on any subject falling in any list in order to fulfil its
international obligations. Some of the other important Acts are
 Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995
This Act is a combination of service-oriented and rights-based legislation, based
on the following approaches: prohibition of discrimination on the ground of
disability in different spheres of life; positive discrimination in favour of people
with disabilities; grant of relaxation in their favour to overcome respective
disabilities; and their inclusion in mainstream programmes. The Act provides for
both preventive and promotional aspects of rehabilitation like education,
employment and vocational training, reservations, research and manpower
development and creation of a barrier-free environment.
 National Trust for Welfare of Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities Act, 1999
The Act was passed by the Parliament with a very progressive objective, namely
to enable persons with disability to live as independently and as fully as possible
within and close to the community to which they belong. The idea is not to push
people out of the society and keep them in residential institutions but to encourage
them to live within their family. They have the right to live with their family.
Another objective is to evolve procedures for appointment of guardians and
trustees for persons with disabilities requiring such protection. The Act also
provides for creating conducive environment in the community and also envisages
counselling and training of family members of persons with disability.
Schemes under National Trust Act
1. Disha (Early Intervention and School Readiness Scheme): This is an early
intervention and school readiness scheme for children in the age group of 0-10
years with the four disabilities covered under the National Trust Act and aims at
setting up Disha Centres for early intervention for a person with disability through
therapies, trainings and providing support to family members.
2. Vikaas (Day Care): This is a day care scheme, primarily to expand the range of
opportunities available to persons with disabilities for enhancing interpersonal and

45
vocational skills as they are on a transition to higher age groups. The centre will
also offer care giving support to the persons with disabilities during the time the
person with disability is in the Vikaas centre. In addition, it also helps in supporting
family members of the persons with disabilities covered under the National Trust
Act to get some time during the day to fulfil other responsibilities.
3. Samarth (Respite Care): The objective of Samarth scheme is to provide respite
homes for orphans or abandoned, families in crisis and also for persons with
disabilities from Below Poverty Line (BPL) & Low Income Group (LIG) families,
including destitute with at least one of the four disabilities covered under the
National Trust Act.
4. Gharaunda (Group Home for Adults): The objective of Gharaunda scheme is
to provide an assured home and minimum quality of care services throughout the
life of the person with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities with adequate and quality care service with acceptable living standards
including provision of basic medical care from professional doctors. Gharaunda
Centre should provide vocational activities, pre-vocational activities and assistance
for further training.
5. Niramaya (Health Insurance Scheme): The objective of Niramaya scheme is
to provide affordable Health Insurance to persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities. All enrolled beneficiaries will get a
health insurance cover of up to Rs. 1.0 lakh as defined in the chart OPD treatment
including the medicines, pathology, diagnostic tests, etc.
6. Sahyogi (Caregiver training scheme): This scheme aims at setting up
Caregiver Cells (CGCs) to provide training and create a skilled workforce of
caregivers to provide adequate and nurturing care for persons with disabilities and
their families who require it. It also seeks to provide parents an opportunity to get
trained in care giving if they so desire. This scheme provides a choice of training
through two levels of courses of primary and advanced levels.
7. Gyan Prabha (Educational support): The Gyan Prabha scheme aims to
encourage people with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities for pursuing educational/ vocational courses like graduation courses,
professional courses and vocational training leading to employment or
selfemployment. National Trust will provide a specific amount per course to a
Person with Disability which will generally cover fees, transportation, books, out
of pocket expenses (OPEs) etc.
8. Prerna (Marketing Assistance): Prerna is the marketing assistance scheme of
National Trust to create viable and widespread channels for sale of products and
services produced by Persons with disabilities (PwDs) covered under National
Trust Act. The scheme also provides an incentive to the Registered Organisation
(RO) based on the sales turnover of the products made by PwDs and fund their
participation in sales such as exhibitions, melas, fairs, etc. to sell the products made
by persons with disabilities.
9. Sambhav (Aids and Assisted Devices): This is a scheme to set up additional
resource centres, one each in each city of the country with population greater than
5 million (As per 2011 census), to provide information and easy access to devices,

46
appliances, aids, 33516/2022/MCP 28 27 software, etc. for betterment and
empowerment of PwDs under the National Trust disabilities.
10. Badhte Kadam (Awareness and Community Interaction): This scheme
shall support Registered Organisations (RO) of The National Trust to carry out
activities that focus on increasing the awareness of the National Trust disabilities.
It aims at community awareness, sensitisation, social integration and
mainstreaming of persons with disabilities. The National Trust shall sponsor a
maximum of 4 events for each RO per year which is obligated to conduct at least 1
event in a year.
 RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016
The Rights of Persons with Disabilities (RPwD) Act was enacted in the year
2016 and came into force from 19th April, 2017. It replaced the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995. The objective of the RPwD Act is to ensure that all
persons with disabilities can lead their lives with dignity, without discrimination
and with equal opportunities. The Act lays down specific provisions to uphold
such rights. It incorporates the rights of persons with disabilities covered under
the United Nations Convention on the Rights of Persons with Disabilities
(UNCRPD), to which India is a signatory.
SOME RIGHTS GUARANTEED UNDER THE RPwD ACT
1. Persons with disabilities have the right to equality, dignity and respect for
integrity: Section 3(1) of the RPwD Act requires the appropriate government
to ensure that persons with disabilities enjoy the right to equality, life with
dignity and respect for his or her integrity equally with others.
2. The Act ensures the rights of women and children with disabilities: Section
4 states that the appropriate government and local authorities shall take
measures to ensure that women and children with disabilities enjoy their
rights equally with others. The section further states that all children with
disabilities have the right to freely express their views on all matters
affecting them and that, for this, support will be provided to keep in view
their age and disability.
3. Persons with disabilities have the right to live in the community. Section
5(2) of the Act states that appropriate government shall endeavour that
persons with disabilities are not forced to live in any particular living
arrangement and are given access to a range of inhouse, residential and other
community support services, including personal assistance necessary to
support living with due regard to age and gender.
4. The Act provides protection to persons with disabilities from being
subjected to torture, cruel, inhuman or degrading treatment: Section 6 of
the Act requires the government to take measures to prevent torture, cruel,
inhuman or degrading treatment and ensure that no person with disability
shall be a subject of any research without his or her free and informed
consent. This is to be obtained through accessible modes, means and formats
of communication and prior permission of a Committee for Research on
Disability.
5. The Act ensures protection of persons with disabilities from abuse,
violence and exploitation: Section 7 of the Act states that victims of

47
 violence, abuse or exploitation shall be rescued, protected and rehabilitated.
The government is also obligated to create awareness about the provisions
and make it available to the public.
Any person or registered organization who or which has reason to believe
that an act of abuse, violence or exploitation has been, is being, or is likely
to be committed may inform the Executive Magistrate of the incident who
thereafter is obligated to rescue, protect, rehabilitate and provide
maintenance to the victim.
The police on receipt of complaint or knowing about such incidents are
obligated to inform the victim of their rights to apply for protection, free
legal aid, right to file a complaint and the particulars of the Executive
Magistrate and the nearest organization/institution working for the
rehabilitation of persons with disabilities.
6. Persons with disabilities are entitled to equal protection and safety in
situations of risk, armed conflict, humanitarian emergencies and natural
disasters: Section 8 of the Act requires the National and State Disaster
Management Authorities to ensure the inclusion of persons with disabilities
in its disaster management activities for their safety and protection.
7. Children with disabilities not to be separated from their parents: Section 9
states that no child with disability shall be separated from his or her parents
on the grounds of disability except on an order of a competent court, if
required, in the best interest of the child.
8. The Act recognizes the reproductive rights of persons with disabilities:
Section 10 states that the appropriate government shall ensure that persons
with disabilities have access to appropriate information regarding the
reproduction and family planning and that no person with any disability is
subjected to any medical procedure which leads to infertility without his or
her free and informed consent.
9. The Election Commissions to ensure that persons with disabilities can cast
their vote: Section 11 states that the Election Commission of India and the
State Election Commissions shall ensure that all polling stations are
accessible to persons with disabilities and all materials related to the
electoral process are easily understandable by and accessible to them.
10.The Act addresses challenges faced by persons with disabilities in
accessing the justice system: Section 12 states that persons with disabilities
have the right to access any court or anybody with judicial or quasi-judicial
or investigative powers without discrimination and steps will be taken to
provide suitable measures to support persons with disabilities, especially
those living without a family and those requiring high support for exercising
legal rights. Further, the Section states that the National and State Legal
Services Authority shall make provisions, including reasonable
accommodation, to ensure access to any scheme, programme, facility or
service offered by them. It is to make all public documents available in
accessible formats and for this, all filing departments, registry, etc, will be
supplied with necessary equipment. All necessary facilities and equipment to
facilitate the recording of testimonies, arguments or opinions given by
persons with disabilities in their preferred language and means of
communication will be made available.

48
 11. Legal rights of person with disabilities: Section 13 states that the
appropriate government shall ensure that persons with disabilities enjoy
equal legal rights on an equal basis with others in all aspects of life and have
the right to equal recognition everywhere as any other person before the law.
12.Appointment of Limited Guardian: Section 14 states that if any
designated authority finds that a person with disability, who had been
provided adequate and appropriate support, is unable to take legally binding
decisions, then he may be provided further support of a limited guardian to
take legally binding decisions on his behalf in consultation with such person,
in such manner, as may be prescribed by the state government. The notified
court or authority may grant total support to the person with disability and in
case of limited guardianship is granted repeatedly, the decision regarding the
support to be provided shall be reviewed by the court or the designated
authority to determine the nature and manner of support to be provided.
13.Persons with disabilities require high support: Section 15 of the Act
states that the appropriate government shall designate one or more
authorities to mobilize the community and create social awareness to support
persons with disabilities in the exercise of their legal capacity. The
authorities so designated shall take measures for setting up suitable support
arrangements to enable persons with disabilities living in institutions and
those with high support needs to exercise their legal capacity.

 The Mental Healthcare Act, 2017

It is the right of every person to have access to healthcare services, including
mental healthcare. In order to ensure access to mental health assistance to all, the
Mental Healthcare Act, 2017 was passed on 7 April, 2017 and came into force
from 29 May, 2018.
What is Mental Illness?
The Mental Healthcare Act, 2017 defines “mental illness” as a substantial
disorder of thinking, mood, perception, orientation or memory that grossly
impairs judgment, behaviour, capacity to recognize reality or ability to meet the
ordinary demands of life, mental conditions associated with the abuse of alcohol
and drugs, but does not include mental retardation which is a condition of
arrested or incomplete development of mind of a person, specially characterized
by subnormality of intelligence.”
What is Mental Health Care?
Mental Healthcare includes analysis and diagnosis of a person’s mental condition
and treatment as well as care and rehabilitation for mental illness. The motive of
this Act is to provide mental healthcare and services for persons with mental illness
and to protect, promote and fulfil the rights of such persons during delivery of
mental healthcare and services.
Rights of Persons with Mental Illness as given in the Mental Healthcare Act,
2017:
1. Right to Access Mental Healthcare: Every person shall have the right to access
mental health services run or funded by the appropriate Government at affordable
cost and the mental health services should be available in sufficient quantity

49
without any discrimination on the basis of gender, sex, sexual orientation, religion,
culture, class, caste, political beliefs, disability or any other basis.
2. Right to Information: A person with mental illness or his nominated
representative shall have the right to know the criteria of admission if the person is
being admitted, know and understand the treatment plan and side effects (if any) of
the proposed treatment and make application to the concerned Board to review the
admission.
3. Right to Access Medical Health Records: All persons with mental illness shall
have the right to access their basic medical records. However, the mental health
professional (in charge of such records) may withhold specific information in the
medical records if disclosure would result in serious mental harm to the person
with mental illness or likelihood of harm to other persons.
4. Right to Equality and Non-Discrimination: Every person with mental illness
shall be treated as equal to persons with physical illness which should include
access to ambulance services, emergency service and other services without any
discrimination
5. Right to Confidentiality and Restriction on release of information in respect
of mental illness: A person with mental illness shall have the right to
confidentiality in respect of his mental health, healthcare and treatment plan.
Therefore, all health professionals providing treatment to a person with mental
illness should keep the information confidential which has been obtained during
the treatment. The right to confidentiality of person with mental illness shall also
apply to all information stored in electronic or digital format in real or virtual
space.
6. Right to Free Legal Aid: A person with mental illness shall be entitled to
receive free legal services to exercise his rights given under the Mental Healthcare
Act. It should be the duty of the magistrate, police officer, person in charge of the
custodial officer or mental health establishment to inform the person with mental
illness that he is entitled to free legal services
7. Right to make Complaints about Deficiencies and Provision of Services:
Any person with mental illness or his nominated representative shall have the right
to complain regarding deficiencies in provision of care, treatment and services in a
mental health establishment to the medical officer. If not satisfied, the person
should send the complaint to the concerned Board or the State Authority if not
satisfied by the response of the concerned Board.
8. Right to protection from cruel, inhuman and degrading treatment: Every
person with mental illness shall have a right to live with dignity and they must be
protected from cruel, inhuman or degrading treatment in any mental health
establishment.
9. Capacity to make Mental Healthcare and Treatment Decisions: i. Every
person including a person with mental illness shall have the right to make
healthcare or treatment decision, if the person is able to understand the information
related to the treatment, communicate the decision by speech, expression or gesture
and appreciate any reasonable consequence of a decision or a lack of decision on
treatment. ii. The information regarding the healthcare treatment shall be given in a
language that is understandable to the person with mental illness, i.e. use of simple
50
language, visual aids or sign language. iii. The determination of a person’s mental
illness shall alone not imply or be taken to mean that the person is of unsound
mind unless he has been declared as such by a competent court.
10. Advance Directive:
Every person who is not a minor, shall have a right to make an advance directive
in writing, specifying the way a person wishes to be cared and treated for a mental
illness , and appoint individual or individuals as his nominated representative for
taking decision related to his treatment in conditions when the person is unable to
make treatment decisions for himself.
INDIAN JUDICIARY
“Laws are a dead letter without courts to expound and define their true
meaning and operation”
The role of judiciary in protection and empowerment of persons with disabilities is
an important one. In recent times, the Indian judiciary has emerged as the protector
of human rights and its responses towards violation of human rights have been
optimistic. Though initially scanty, judicial activism in the field of human rights is
beginning to emerge as a new hope for the vulnerable groups. The Supreme Court
in a number of cases has progressively interpreted the Disabilities Act 1995 for the
benefits of disables persons.
In Javed Abidi v. Union of India, the Supreme Court, keeping me view the
objectives of the Act, hold that the Court cannot ignore the true spirit and object of
the Act to create a barrier free environment for persons with disabilities and to
make special provisions for the integration of persons with disabilities into the
social mainstream.
In Chandan Kumar Banik v. State of West Bengal The Supreme Court had to
intervene in order to provide respite to mentally challenged inmates of hospital in
Hooghli district who were being kept chained by the hospital administration to
control their unruly or violent behaviour.
In Sheela Barse v. Union of Indiadirections were issued by the Supreme Court
that physically and mentally retarded children and abandoned or destitute children
shall be lodged in protective or observation homes and if such children are accused
of any offence, the investigation and trial against them be expedited by setting up
juvenile courts in each district and a cadre of trained magistrates for dealing with
such cases be formed.
In National Federation of Blind v. Union Public Service Cornmission, the
Supreme Court was activated so that the Public Service Commission may be
directed to allow blind persons to compete in the exams for the Indian
Administrative and Allied services. The petition was allowed by the Court. The
Court also acceded to the petitioners request to write the examination in Braille
scripts or with the help of scribe.

CONCLUSION

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It is evident from the review given in the preceding paragraphs that the worldwide
disabilities rights movement has initiated a new thinking among non-disabled
persons that people with disabilities must also be provided with equal opportunities
and equal treatment by society. Despite international and national movements, it is
evident from the various data that the existing facilities are extremely inadequate.
In certain cases, the foundation has been laid while in others, a beginning has to be
made. Even though, laws have been passed for the protection of the rights of
persons with disabilities, enforcement of the same has been tardy. However, the
new laws cannot bring the rights of the disabled until we as human beings, thinks
that in addition to access, education, health care, rehabilitation services and
employment, all people with disabilities need a safe, secure and accessible
environment which is respectful of their dignity. We need to learn to care for all
human beings as human beings, with due respect for all their differences.

Unit 3 [Different abled, third gender and the law]

52
 Rights of the Third Gender
The Constitution of India, which serves as a foundation and manual for democratic
governance, incorporates gender equality as one of its guiding principles. The
Indian Constitution was made possible by the inclusion of gender justice, which
includes affirmative action for reducing social and economic disparity and equality
before the law. It is important to note that with the changing generations, the term
“gender” and “gender justice” has also broadened its aspects to a new category or
community of gender known as then Tran genders or the LGBT Community.
Transgender people are individuals whose characteristics and behavior differ from
stereotypes about how men and women are supposed to be. In other words,
Transgender encompasses anyone whose identity or behavior falls outside of
stereotypical gender norms. Transgender Persons are not treated as an equal part of
society due to lack of social acceptance. Transgender Persons are usually
abandoned and have fewer means for survival and avenues for gaining livelihoods.
Parents tend to feel that it is dishonorable to have a transgender person as it will
bring shame on the family.
What is the objective of the law?
So to encompass the problem of discrimination and protect the community, The
Transgender Persons (Protection of Rights) Act, 2019 (“the law”) has been
drafted and formulated to protect the rights of Transgender Persons in India, and
provide for their welfare. This law is applicable to the whole of India.
Who is a Transgender Person?
As per the law, a Transgender Person is a person whose gender does not match
with the gender assigned to that person at the time of birth, and includes:
 Trans-man
 Trans-woman
 Person with inter-sex variations
 Gender-queer persons
 Persons with socio-cultural identities such as kinner, hijra, aravani and jogta
Legal Status Of Transgender
In India, Transgender Persons are legally recognised as the ‘third gender’ or ‘other’
gender. They have the same status as that of any male or female person. They also
have the same rights, including the right to exercise their fundamental rights under
the Constitution of India. On April 15th, 2014, after years of unjust gender
discrimination, the transgender persons were given a separate identity, after
Supreme Court, in the landmark judgment of National Legal Services Authority v.
Union of India & Ors, (2014) 5 SCC 438 in this case recognized the third gender
category before the eyes of Law. The Court broadened the constitutional
interpretation and busted the binary gender structure of man and woman. The court
held that all transgender persons are entitled to fundamental rights under Article 14
(Equality), Article 15 (Non Disrimination), Article 16 (Equal Opportunity in Public
Employment), Article 19(1)(a) (Right to Free Speech) and Article 21 (Right to

53
Life) of the Indian Constitution. In 2020, the parliament legally recognized
‘transgender’ as an official gender in India.

LAWS PROTECTING TRANSGENDER PERSONS

Some of the important provisions in the Constitution protecting transgender rights
include:
 Right to Equality (Article 14) : No one can deny any “person” equality
before the law or equal protection of law. Using the term “person” shows
that no discrimination is done on the basis of sex or gender identity.

‘Transgender Persons’ cannot be subjected to unfair treatment in educational

 Pinstitutions ror at the time
o of employment.
h They
i also haveb the righti to equal t
health services, and the right to use public property or the right to freely move
in the country.

(Article 15) : Prohibits any sort of discrimination on the basis of race,

religion, caste or sex or any of them. This implies that discrimination or ill-
treatment of Transgender Persons infringes their basic fundamental right.
In the case of Mx. Alia SK v. The State of West Bengal and Ors.(2019), the
court held that Transgender persons have the right to seek admission into
universities. The judgement is important because it signified the role of
courts in ensuring that special accommodations and adjustments are made to
include transgender people in the process of public university applications
and admission process where none exist.
 Freedom of speech and expression (Article 19) : This right grants every
citizen the freedom of speech and expression. This includes the freedom to
express your gender identity publicly.
 Right to life and personal liberty (Article 21): Article 21 which deals with
the protection of life and personal liberty states that no person shall be
deprived of his life and personal liberty except according to the procedure of
law. This right states that every individual including a transgender person
has the right to life and personal liberty. The transgender person being a
citizen of India should have the full right to protect their life and personal
liberty.

In the case of Nangai v. Superintendent of Police (2014) , the Madras High Court
recognized that compelling a person to undergo a medical examination of gender violates Article 21.
It upheld a person’s right to self-identify their own gender.

What can be done if Transgender rights are violated?

The National Council for Transgender Persons was set up under the Transgender
Persons (Protection of Rights) Act, 2019 for addressing grievances.
National Council for Transgender Persons is a statutory body established on 21st
August, 2020 by the Ministry of Social Justice and Empowerment. It advises the
government on all policy matters affecting transgender, intersex persons and
people with diverse GIESC (Gender Identity/Expression and Sex Characteristics)
identities. The council is composed of-

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  The Union Minister in-charge of the Ministry of Social Justice and
Empowerment, Chairperson, ex officio;
 The Minister of the State, in-charge of the Ministry of Social Justice and
Empowerment in the Government, Vice-chairperson, ex-officio;
 Various other representatives from different fields.
Furthermore, violations of Part III rights of Transgender persons can be remedied
by approaching the Supreme Court or High Courts under Articles 32 or 226. In
addition, other rights guaranteed under various laws are protected by Article 226.
Moreover, violation of rights to the ‘third gender’ constitutes human rights abuse.
The State and National Human Right commissions can be approached by the
victim.
For those facing discrimination during the course of employment, either in public
or private sector, do approach the designated complaint officer set up under the the
Transgender Persons (Protection of Rights) Act, 2019.

Conclusion:
According to the provisions in Articles 14, 15, 16, 19, and 21 of the Indian
Constitution, “enjoyment of life by all citizens and an equal opportunity to grow as
human beings irrespective of their race, caste, religion, community, social status,
and gender” is the “golden thread” that unites the equality system. The “right of
choice and self-determination” is recognized and acknowledged as one of the
fundamental principles of the equality program. A person’s right to self-
determination and dignity are intrinsically tied to the gender to which they belong
and are related.

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